Legal Writing Tag

Reply to a Terrible Brief

After filing an opening brief, you have a month or more to see what your opponent has to say.  The day finally arrives, and you snatch up your opponent’s brief and read it only to discover that your opponent has filed a truly bad brief, an extraordinarily poor piece of work that makes you laugh and cringe at the same time.  How do you respond in your reply brief?

Kinds of Authority

Think of legal research as a way to get from here to there and to convince others to go with you.  Even judges, perhaps especially judges, are uncomfortable going, in the words of Star Trek “where no man has gone before.”  Legal research provides the stepping stones of authority showing that others have gone from here to there before and that “there” is the right place to go. Here are some of the stepping stones:

• Direct authority—a clear and definitive statement in the applicable constitution or statute or by a controlling court or other body (use may require briefing to establish the body’s status as controlling when preemption, choice of law, and similar issues are presented; if there is no statute, then a regulation; if the highest court has not spoken, then an intermediate court).

How To Shorten Your Documents

At least in the initial drafts, efforts to keep a document concise may stifle the flow of written words.  If this is true, then let the words come freely and deal with wordiness later.  Once the desired content is captured, a writer can turn to making the document shorter and otherwise more pleasing. There are a variety of ways to shorten the draft to meet page limits:

• Check the margins to be sure the lines extend to the full permitted width and length.  Extend the block quote margins.
• Create

Using Short Names

Legal documents routinely identify the parties and others by full name in the early passages and then create a short name for use in the rest of the document. Make the most of this practice by thinking things through at the beginning of a case.  Whatever short name is selected should be one that works for the entire case and any appeal. Changing the name even once adds an opportunity for confusion that cannot benefit the client. Some factors in selecting the short name:

• The name needs to be short, the shorter the better if other requirements are met.  If there are word limits for briefing in the trial court or, more likely, on appeal, use

Using Online Legal Dictionaries

Many legal dictionaries are available on the Internet:

• First (1891) and Second (1910) Editions of Black’s Law Dictionary;
• The U.S. Courts provides a glossary;
• Wex is a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. Wex entries are collaboratively created and edited by legal experts;
• Lawyers.com offers a legal dictionary based on the Merriam-Webster’s Dictionary of Law (2001);
• The World Wide Legal Information Alliance offers

How To Best Use Bullets in Briefs

Often a listing of specific items need not or should not be numbered.  Numbers may incorrectly indicate a hierarchy or ordering of the items.  In these cases, bullets work well. The material presented in bullets needs to be parallel in form and format.  If one is a sentence, then all should be sentences; if one is a phrase, the rest should be similar phrases.  The bullet items should normally all be in the same tense if verbs are used.  Opening capitalization and ending punctuation (if any) should be the same.  There is no absolute right and wrong in the style. Shorter phrases lend themselves to lower case.  If any bullet will have more than a single sentence, then an initial capital and a period will be needed. When appropriate, a short caption can introduce each bullet.

Why You Should Vary Sentence Length

Attorneys often write exhaustive and exhausting sentences.  Attorneys may not be the worst offenders, as Wikipedia cites Jonathan Coe’s 2001 novel The Rotters’ Club as containing a 13,955-word sentence.  In Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011), the court criticized a complaint with at least 23 sentences with 100 or more words, including sentences of 385, 345, and 291 words.  Average sentence length should be 18 to 20 words, and Word will tell you that, along with other readability indicators. Some sentences have to be relatively long, but long sentences should be interspersed with short ones.  Long sentences often can be made more comprehensible with the use of bullets or numbered lists.  Sentences that are initially long when drafted can be revised into two or several shorter sentences. Why does it matter?