April 9, 2024
Two Writing Lessons From a Former Clerk: Streamline and Focus
BY: Nathan Moelker
All great craftsmen hone their tools, and one of the tools given to the lawyer is the pen. We all have our own unique challenges in our writing craft, but some writing challenges are such a besetting problem in the legal writing process that they merit some focused attention. This article focuses on two.
Streamline your Arguments.
As a law clerk I would read many hundreds of briefs from across the wide spectrum of legal cases—from multimillion dollar frauds to dog bites and everything in between. Clerks see the wide gamut of writing and the full range of quality on display in our profession. Great briefs by the U.S. Attorney’s Office or by the State Attorney General’s Office were often a joy to work through—not so much, the difficult or more poorly written briefs.
There were many characteristics that distinguished the bad briefs from the good. All courts deal with a substantial volume of pro se filings with a wide variety of technical problems. But one problem beset even many trained lawyers, sometimes even more than pro se individuals trying to file briefs on their own behalf. That problem is over-complicating their cases.
Most courts lack official limits on the number of issues that a party can raise on appeal. Accordingly, attorneys often find it easy to err on the side of overinclusion; if the court below made an error, why not include it in the appeal just to be on the safe side? Likewise, when we write briefs at the trial level, if an argument seems viable, we tend to include it on the hopes that it just might stick.
Thorough briefing is certainly important. But we tend to extremes, and this overinclusive approach poses dangers that are missed at our peril. By tangentially hitting on every issue, a writer inevitably leaves under-addressed the issues in a case that matter the most. For example, I recall reviewing one brief in a criminal case that contained over twenty individual assignments of error. Even with a (substantial) page limit extension, the attorneys drafting the brief were able to spend three or four pages at most on all but a few of the issues they discussed. Because they did so, none of their arguments were thoroughly addressed in their briefs; the appellate court simply could not give any one issue the attention that it should have received, because it was crowded out by all the others.
The same is true at the trial court. Many records I have reviewed contained briefs, for example at the summary judgment stage, where a wide scattershot of issues would be discussed, nearing the word limit, but no issue discussed in depth, and the issue the appellate court was concerned most about only touched on in passing as part of the scattershot approach of the trial attorney. The brief discussed a host of irrelevant issues, and then only reached the main issue as an afterthought.
So what is the solution? First, consider in some cases restructuring your arguments; often what appear initially to be separate issues can be addressed together, and the argument best presented in a way that is more straightforward. For example, in one case, involving multiple tort claims, the briefs worked element by element through each specific tort, proving rather lengthy and cumbersome. The requisite mental state for each tort was the same. Instead of separating out each issue in a way that led to a lot of repetition of the same concepts and facts, proving over and over again the same requirement, it would have been a far cleaner method of organization to address that mental state issue comprehensively, streamlining the entire brief. Many cases may likewise prove to be organizable in such a way that the complex can be made simple. This is one of the greatest challenges of truly excellent writing.
But here is an even more radical piece of advice: consider not making every argument you could possibly make in the case. This advice is no doubt controversial. But the reality is, an issue in an eight-issue brief is simply not going to be treated with the attention of a judge that an issue in a three-issue brief will be. Making a handful of arguments well is inevitably more persuasive to any court than making a lot of arguments half-heartedly.
But how do I decide which to cut? Focus your brief on your strongest arguments, and specifically, your strongest arguments for the outcome you are seeking in your brief. It is the second part that is easiest to forget. Let’s say you just lost after a bench trial and are preparing your issues for appeal. Imagine the trial judge made an evidentiary error that you think is absolutely insane and easily refutable, but that error is in no way actually dispositive of your case or likely to lead to a reversal. As strongly as you may be tempted to rail in your appeal against the evidentiary error, if it is not going to affect the outcome, don’t! Any space in your argument section not devoted to showing why the judgment below should be reversed is simply a waste of time. Non-dispositive evidentiary errors, not affecting the disposition, should not be wasting your time. By limiting your argument points to your strongest arguments for prevailing and getting the outcome you seek, you are far more likely to convince a judge to heed those arguments.
Write to the Issue Before You.
A similar problem besets attorneys frequently. We are taught to center our arguments on our theory of the case and to return throughout our case to our central arguments on the merits of our case. This is crucial to good writing; no document is ever written in a vacuum, and every piece of writing we do in a case should be done with our ultimate theory on the merits as the context for our case. But in seeking to follow this principle, attorneys sometimes fall into a deadly trap.
The context of every brief should always be one’s ultimate argument on the merits. But that is often not the only context. And many briefs are written as if the only issue before the court reviewing the brief is whether the brief writer is right or wrong on the merits, forgetting the key issues the court is actually addressing. Two examples:
The Virginia Supreme Court’s review is discretionary in most circumstances. The same was true at the court I clerked. Many otherwise well-written petitions for certiorari were focused, not on identifying why a reason justified the court’s discretionary review in a particular case, but on why the petitioners prevailed on the merits. In other words, most certiorari petitions are largely a redo of the previous brief on the merits. This is simply not what the appellate courts are looking for. Their first question is whether a petitioner’s case is worthy of being resolved by their court at all. Your arguments on the merits won’t alone convince them; you need to show specifically why the case itself merits their attention, according to the considerations the court has looked at previously for such inquiries, before you jump to arguing on the merits.
Likewise, many briefs are written as if a preliminary injunction has only one element, success on the merits. A good (or even competent) motion for preliminary injunction needs to properly address all the requisite elements. Ignoring any of them would be catastrophic to the argument, yet many briefs treat the argument over a preliminary injunction as being an argument on the merits alone.
In any circumstance, the first step in any brief should be writing to the issue actually presented. No court will be convinced by an argument directed at an issue it was not considering, and far too many briefs are written to problems not actually before a court.