10 Oct Brief Writing on a Computer
In the “olden days,” as recently as the 1970s, briefs had to be written by hand or dictated, then typed on a typewriter. An omission or error often meant having to retype the entire page. The computer can be used simply as a fancy typewriter, but writing on the computer is fundamentally different in kind as well as in quality. The following comments assume the writer starts with the appellate record or an opening or opposition brief on appeal and is required to produce an opening, opposition or reply brief:
- Starting with the appellate record, take notes on initial review to capture as many points as possible that will be needed for the brief–some like to annotate the record directly or on sticky notes, others read and take notes directly on the computer. The former may help the reader focus more fully on the record, while the latter gets the writing underway.
- Starting with the opening brief, the writer can take notes as preferred. The first in depth review of the opening brief usually informs an experienced writer whether the opposition brief can be structured to follow the basic order of the opening brief.
- In the initial thinking phase, the writer can identify all the thoughts triggered by the review of the record or opening brief, each thought on a separate line. These thoughts are both reactions to the record or brief and ideas about the brief to be written. No particular order is important because they can easily be resorted. Some may never find a home in the brief while others will form principal arguments. The key is to capture the ideas before they are forgotten.
- The various points captured can then be placed in a logical order, with some subordinate to others. Don’t worry if you are not sure about some points, whether they will fit into the brief or where. Keep placeholders when there are subjects that will need to be addressed but you haven’t figured out what you will say or how you will approach them. The odd ideas that seem not to fit anywhere can be saved at the very end of the document.
- Next, start creating the brief. Just getting the new file open, titled or captioned, in the right format and font, can help focus your mind. Insert your thinking points, with the odd ideas placed below the signature lines. During the drafting, more ideas will come to mind that you can add, and some of the odd ideas will find homes in the brief. Nothing is more frustrating than remembering a fleeting idea that came and disappeared while drafting that could have made a difference in the brief. Drafting is impossible, however, if the mind is pulled from thought to disparate thought and unable to focus. Recording the odd fleeting ideas at the end of the document ensures they will not be forgotten so the writer can return to the issue at hand.
- Draw from your earlier writings for some points. The briefing in the trial court obviously cannot be ignored, and your own briefing reflects hard work already done for this client. The appellate situation is different, of course, and any excerpts from earlier writings need to be tailored to the appellate context and the changed burden of proof. Moreover, developments in the law do not stop, so all authorities must be updated and new developments considered.
- Other topics for the appeal briefs will need entirely new research and writing. Break these down to manageable segments. One idea when you search Codes or Digests: use colored clips (blue/green for the “cold” inside, red/yellow for the “hot” outside) and clip every case that might be helpful or troublesome. Reviewing all the relevant annotations provides a valuable overview—have courts become more restrictive or liberal over time, are certain kinds of disputes arising more frequently. The full review also ensures that theories and arguments that are new to you are not omitted. After the full review, focus on smaller segments of the topic, reading the cases and organizing them into a logical approach to develop the argument. Look at cases that are most recent, Supreme Court, most on point before those that are older and less likely to be helpful. In each instance, the colored clips can stay on until you’ve completed the argument or the brief, serving as reminders and identifying needed information.
- As you research and think, continue to make notes at the very end of the brief of ideas that are triggered and information that can or might be pursued or used. (E.g., check evidentiary presumptions, make hearsay objection, what about ____? here is a funny or pleasing quotation that might find be used in the reply brief ….) Trying to hold information in the active mind is stressful and diminishes the available active mind to be used in writing the brief.
- If your brief is primarily responsive to the opening or opposition brief, then organize your brief in the same order because that is the easiest way for the reader to absorb your response. Appellate judges want to find responding arguments easily. Using the same order and similar caption words helps. Pretty much anything that helps the judges helps your client. This general rule does not mean that you can’t open with a section explaining that the other side’s arguments are defeated not only by individual flaws but also by an overarching legal principle not addressed by your opponent.
- As you proceed, serially address the points that you feel most ready to address. Writers often discover that they have subliminally figured out how to deal with other troublesome issues while working on the easier ones. Staring at the computer screen with writer’s block is often a sign of not understanding something well enough to write about it. In that case, return to the books and come at the research in a different way.
- Ultimately, you will finish all the points. The brief is not done. First, reread the record and briefs already filed, if any, to see what was missed in the initial reading. You understand the facts and law better now, so you may see things you missed. Check your initial notes for any ideas that slipped through the cracks.
- Then reread the brief you’ve written. There are always wordy places that can be tightened up and power words that should be used instead of weak words. For example, if true, “the court held” or “ruled” is always more powerful than “the court said.” If the document is too long, trim as needed.
- When almost done, look at the opening paragraph or two. Can these be clearer, more to the point? Do you promise something that you don’t deliver? Is there anything wrong or weak about the beginning? Can you add some punch to the brief?
- Check the end of the brief for any loose ends that need to be worked into the brief or saved to a different location. Then delete any remaining notes.
- Now, pull out the headings and look at them both individually and as a brief in their own right. Doing so may trigger a realization that something is missing or out of logical order. Moreover, a judge who read the brief a week ago may use the table of contents to refresh recollection. A strong table of contents that can stand alone to present the points is a powerful addition to the brief. Some appellate courts regularly refuse to consider arguments not set out under their own heading.
There are some good articles about legal writing here, and and some great videos created by Bryan Garner here and here.