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May 18, 2015 Articles

Tips on Effective Editing

Editing can be the difference between a brief that gets read and one that gets skimmed.

By Ashley Burkett

Mark Twain famously apologized for writing a long letter because he “didn’t have time” to write a short one. In other words, Twain’s letter suffered from a lack of editing. As Twain’s quip suggests, editing does require planning and can sometimes be time-consuming, but it is nonetheless a critical step to ensure that a writer’s message is both clear and concise.

While clerking on one of the busiest appellate courts in the country, I saw firsthand the importance of taking the time to carefully edit briefs. In short, editing can be the difference between a brief that gets read and one that gets skimmed. Courts are simply too busy to spend hours deciphering the meaning of any one brief. If a brief is wordy or unclear or, worse, repetitious, the reader will be tempted only to skim through it. It is therefore imperative that arguments be communicated clearly and, most important, concisely.

By taking the time to edit a brief, you will not only increase the chances that your brief will be studied carefully but will also demonstrate to the court that you respect its time and workload. The following five steps may be used as a guide for working through the editing process from beginning to end.

1. Plan Ahead
The first—and most important—step is to plan ahead so that you have enough time to edit your brief. In the ideal situation, the editing process begins after you have set the brief aside for a few days. Turning your attention to other matters for two or three days will allow you to approach the brief with a new perspective. Specifically, having some distance will enable you to see the brief from a point of view similar to that of a judge or law clerk reading it for the first time. That fresh perspective will help you better to evaluate whether all the key facts are clearly set out, whether the reasoning of the brief is easy to follow, and whether your main points stand out (or get lost in the details). It will also help you catch more mistakes as you proofread because having some distance from the brief makes it more likely that you will see what is actually on the page instead of what you think is written there.

This cooling-off period is also a good time to let others review the brief—preferably, those who are not mired in the details of the case, because their perspective will be most similar to that of the court being introduced to the case for the first time. For that reason, their comments and impressions can provide invaluable insight into how the court will perceive your brief.

Once you’ve stepped away from the brief for a few days and received feedback from others who have read it, the rest of the editing process can begin. It is best to have one to two additional days after the cooling-off period to complete the editing process. For that reason, you should plan to have a first draft completed four or five days before the final draft is due to allow yourself enough time to take a step back before editing and fine-tuning your work.

2. Eliminate Redundancy
In the words of Justice Scalia, “[r]epetition bores, and boredom invites skimming.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 92 (2008). Many court rules allow short introductory or summary-of-the-argument sections, and in my experience while clerking, those sections—while commonly useful—were fertile ground for repetition. It is tempting as a writer, especially when pressed for time, to simply repeat headings or topic sentences in these sections. Resist that temptation. It is common practice for law clerks and judges to begin a brief by reading the table of contents and summary-of-the-argument section to get an initial idea about the case and what the arguments are going to be. If the summary of the argument is merely a regurgitation of the headings found in the table of contents, the court will be bored from the outset.

The same is true for the other sections of the brief. It is natural for first drafts to contain repetition because the writer may be unsure of where certain information and arguments will ultimately fit best. It is imperative, however, to read through the brief during the editing process with an eye toward eliminating repetition. Otherwise, if the court is lulled into skimming, it may miss new and important information.

3. Rephrase Unnecessary Quotations
Many of the briefs I encountered while clerking contained an overwhelming number of long quotations. The problem with quotations is that they often slow down the flow of your prose—another invitation for skimming. In my experience, briefs that consisted of strings of quotations cut and pasted together were almost invariably less convincing than those in which the writers explained both the law and their reasoning in their own words. Writers especially should be on the lookout for long, indented passages of quoted text, commonly referred to as “block quotations,” which almost always lead to skimming (or skipping, as the case may be).

Of course, quotations are sometimes necessary. For example, when statutory language is at issue, quoting the language is obviously necessary. And sometimes the precise language of a court decision will be helpful to your argument, and thus a quote should be used. However, as a general rule, it is best to examine each quotation critically while editing and ask yourself whether the quotation is absolutely necessary. If not, consider rephrasing the quote into your own words.

4. Eliminate Excessive Information
After you’ve banished unnecessary quotes, the next step is to eliminate anything else that might confuse or slow the reader down. What follows is a list of questions that will aid you in identifying and eliminating excess

Is every fact essential to the issues? Writers often err on the side of over-inclusiveness when writing the first draft of a brief. But once that first draft is complete, it is helpful to examine each factual assertion critically and ask whether it is really necessary to the resolution of the issues in the case. Facts that may have seemed important in the beginning may not be pertinent in hindsight, and the presence of unnecessary facts can confuse the court.

Is every date essential to the issues? While clerking, I read many briefs that included the date of every event, filing, and hearing in a case. Diligent readers will usually assume that every piece of information in a brief is important and—at least in the beginning—try to keep track of all of the dates. However, as it becomes clear that irrelevant dates are littering the brief, even the most careful reader may start to skim over dates. As a result, dates that are actually important may be lost in the mix.

Is every case cite essential? In my experience, strings of authority fall right behind block quotations on the list of skim-inducing items in a brief. String cites are sometimes necessary. For example, if your argument is that the court should adopt a certain rule because that’s what a majority of other courts have done, then a string cite may be necessary (preferably in a footnote to avoid bogging down the main text of the brief). However, for propositions that are established in a given jurisdiction, citing one controlling decision that stands for the proposition is typically sufficient.

Are there too many acronyms? It is important to consider the audience when using acronyms. While certain acronyms may be second nature to an attorney who is an expert in a given field, it is important to remember that the law clerk or judge may not be an expert in the subject matter of your brief. The same is true for party names. An attorney who has spent months or years working on a case may be able to easily remember the names for which various acronyms stand, but it will not be as easy for a court reading your brief for the first time.

As with other devices discussed above, acronyms are sometimes useful and even necessary. But beware of going overboard: Although acronyms are helpful for names or statutes used many times throughout the brief, there is less need for an acronym when the name or statute is used only a few times throughout the brief. Nor is an acronym necessary for statutes when you can simply refer to the statute as “the Act” without the risk of any confusion.

And be especially aware of the amount of space between the place in which an acronym is defined and the places in which it is used. A reader can become frustrated if required to flip backward in a brief to try to refresh his or her memory as to the meaning of various acronyms, which may have been defined many pages ago. If the reader is forced to spend all of his or her time deciphering the acronyms in your brief, chances are the reader will miss some of your key points.

5. Make Sure Your Main Points Shine Through
The first four steps described above will help eliminate distractions and repetition that can lead to skimming. The final step in the editing process should be to evaluate whether, after those edits, the main points and themes are clear to the reader and not lost in the details. Although there are countless ways to do this, below are a few suggestions.

First, it is always a good idea to evaluate each paragraph to make sure there is a topic sentence. The reader should be able to read only the first sentence of each paragraph of your brief and get a general outline of your arguments. Clear, concise topic sentences that sum up the point of each paragraph serve as a signpost for the first-time reader attempting to understand your argument. If you find that a paragraph doesn’t have a topic sentence, reconsider whether that paragraph is necessary in the first place.

Second, refine your introduction and summary-of-the-argument sections. These sections are your opportunity to give the court your “elevator speech”—the reasons why you should win in a page or less. These sections set the tone for your brief, so it is important to make sure your key arguments and themes are set out clearly. And as noted above, make sure these sections are not merely a repetition of the brief’s headings or topic sentences.

Third and finally, proofread one last time for any typographical errors or wordiness, both of which will distract the reader from your argument.

Although Mark Twain could get away with writing a long letter because he didn’t have time for a short one, brief writers should not take that chance. The best way to ensure that your brief is carefully considered—and not skimmed—is by taking the time to eliminate distractions and excessive information so that your arguments and themes can be quickly and easily understood by the reader.

Keywords: litigation, appellate practice, briefs, editing

Ashley Burkett is an associate in the Birmingham, Alabama, office of Bradley Arant Boult Cummings LLP.

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