August 26, 2019 Articles

Tips on Tone: Finding the Right Voice in Briefs

It’s not just about the law and the facts—striking the right tone with the court can make all the difference.

By Jeffrey Y. Wu

One of the more perplexing comments that young lawyers can get after turning in a draft brief to senior colleagues—often after having spent countless hours and perhaps even sleepless nights putting together a polished draft—is something along the lines of this: “Your draft makes the right arguments and cites the right cases, but the tone needs some work.” Diligent young lawyers, eager to grow in their craft, would be justified in wondering, “Tone? What does that mean? What am I supposed to do with that?”

There are few concepts more amorphous in legal practice than “tone.” Merriam-Webster’s Dictionary has 10 definitions for the term. “[T]he style or manner of expression in speaking or writing” is on point but vague; others, such as “vocal or musical sound of a specific quality,” are evocative but fall short of useful guidance for practicing lawyers. Tone, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). And there is little official guidance as courts rarely comment on the tone of legal briefs. When courts do comment, it is often because something has gone awry with a brief. Cf. e.g., Toeller v. Wis. Dep’t of Corr., 461 F.3d 871, 875 n.1 (7th Cir. 2006) (stating brief’s rhetoric was “out of line” and urging “a more appropriate tone in future briefs filed with this court”). There is usually no acknowledgment when a brief does present arguments effectively in an appropriate tone.

There is, of course, no one-size-fits-all formula for finding the right tone for legal briefs. The appropriate tone will depend on the nature of the case; the posture of the proceedings; the particular issues involved; the jurisdiction; the specific forum, the parties; and, of course, the goals of both client and lawyer. Below are a few suggestions that young lawyers might consider. 

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