If your colleagues do not have any examples to offer, take advantage of the trial documents tool on Westlaw or LexisNexis. Additionally, you can also use these tools to look up previous opinions by your judge and tailor your writing style to that of the court. It says a lot when the judge or the clerks can pull directly from your brief to construct the court’s opinion.
Placement Is Key
As judges and their clerks have a very limited amount of time to read and evaluate your brief, placement is key. As Judge Alex Kozinski of the Ninth Circuit put it, you do not want to "bury your winning argument among nine or ten losers." The Wrong Stuff, 1992 BYU L. Rev. 325, 327. If your argument rests on several bases or alternative grounds, be sure to organize the arguments from the strongest to the weakest.
Additionally, the first page of your brief is prime real estate, as the judge may only have time to glance at your work. You want to provide the judge with a concise and persuasive overview of "why you win" without having to turn a page. For visual impact, place your strongest arguments in bullet points after a phrase such as "This Court should grant Defendant’s Motion for Summary Judgment because . . . ." If you are having trouble with space, replace party names with "et al." in the style and eliminate the typical phrase introducing the parties to the court.
Be Persuasive Throughout
A compelling brief is not only persuasive in the argument section, but also subtlety persuasive throughout the entire brief. Instead of presenting the facts from a neutral point of view, craft a compelling recitation that highlights the facts that support your legal argument or theme. Also consider stressing the absence of critical facts when it is advantageous to your case.
Also, do not miss the opportunity to employ advocacy in the legal standard section, as this is frequently overlooked. Instead of simply reciting the legal standard from case law or copying it from a prior brief, explain how the standard works to your advantage. For example, in a brief opposing a petition for review, I cited a case that emphasized that the court had only accepted jurisdiction in that type of case three times, which was "more rare than a blue moon, a total eclipse of the sun, or the birth of a Giant Panda in captivity." See Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347, 350 (Tex. 2001).
However, subtlety and accuracy is key. Make sure that you include all relevant facts and all essential components of the legal standards at hand, while emphasizing the ones that help your case without being too argumentative. Omitting relevant information or being misleading will compromise your credibility with the court.
Keep It Concise
Regardless of the complexity of the law or the argument you are making, strive to keep your writing as simple and concise as possible. Present the arguments in your brief as you would to a layperson or jury and eliminate any words that are not necessary. Although your target audience is legally sophisticated, this does not mean your argument should be convoluted and jam-packed with legalese. The most persuasive briefs break down complicated arguments into simple, easy-to-understand components. As Judge Kozinski noted, "simple arguments are winning arguments; convoluted arguments are sleeping pills on paper." Supra, at 326.
Keywords: litigation, Judicial Intern Opportunity Program, JIOP, persuasive brief writing