May 07, 2019 Practice Points

The ABC’s of Legal Writing for Litigators of All Experience Levels

How to craft an artful legal brief for the court to read.

By Jared M. Katz

At a recent seminar by court attorneys who handle motion practice at a Santa Barbara, California, courthouse, the presenters discussed how one can make his or her legal briefs more persuasive to the court. I am sharing five highlights from their excellent presentation combined with some of my own observations. As an overall theme, attorneys should practice the ABC’s of legal writing: Accuracy, Brevity, and Clarity. The following tips reinforce that theme.

  • Know your audience: The reader is the court—not opposing counsel or your client. Being a reader-centered writer, rather than a writer-centered writer, helps the court better digest your writing, including gleaning the precise relief you are requesting and the grounds supporting your position. We are often told to use plain English to make a point wherever possible, rather than resorting to dense and perhaps archaic legalese.
  • Be organized: The more time you spend organizing your thoughts into a logical argument that flows, the more readily the court can understand what you are saying. What are your papers intended to accomplish? Get there in a logical progression that makes it clear to the reader. The court may not necessarily appreciate the extra work involved in trying to decipher a disorganized stream-of-consciousness spew.
  • Be concise: In being a thorough and zealous advocate, you may often feel the urge to include as much material as you can fit within the page limit. But before doing so, think about whether that is truly helpful to the court. Only include what you really need to win—that’s why it’s called a “brief.” Limit fact discussions to what is necessary to give context, address the dispositive issues and provide the necessary evidentiary foundation. Use specific citations to the evidence, and pinpoint citations to the case law or statutes so the court does not have to search.
  • Be accurate: If you’re not, you lose credibility with the court and damage your client’s case. Proofread. When citing to evidence, your job is to put the evidence in the best context but not to misstate it. Likewise, don’t exaggerate case holdings or rely on only incomplete citations to case excerpts setting forth a helpful “general rule” while failing to address the exceptions that may undercut your case. Again, proofread.
  • Care about your work product: You are consuming valuable court time with your brief. Your client is paying you and trusting you. Write and rewrite until your words “pop” with a logical flow that is easy to read. Take breaks between drafts to regain your perspective and focus. You want your analysis to be three-dimensional and captivate the reader. The court has a heavy workload, and your hope should be the court actually appreciates spending the time to read your writing.

These tips are based on common sense but following them can be easier said than done—especially, for instance, while under the stress of a filing deadline or when venturing into a new practice area with which you are not very familiar. Nevertheless, remembering the ABC’s as a foundation of your legal writing will serve you well, whether you are a brand new associate or the senior partner in the firm.

Jared M. Katz is with Mullen & Henzell L.L.P. in Santa Barbara, California.


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