Vol. 76, No. 2, February
Writing the Persuasive Brief
The brief is the appellate lawyer's most
important tool, because it is the one time when the attention of each
deciding judge is independently focused on the lawyer's position in the
case. A former appellate judge explains why it is critical that brief
writers respect the judges' limited time, and provides tips on how to
get - and keep - their attention and interest in your position.
Prof. Fred Rodell of the Yale Law School once remarked that there are
two things wrong with almost all legal writing: "One is its style. The
other is its content. That's about it."1 A
little harsh, perhaps, but most appellate court judges will tell you
that poorly-written, unpersuasive briefs are commonplace - almost as
commonplace as articles and comments attacking lawyers'(and judges')
writing efforts as archaic and incomprehensible. And yet, when the
American Bar Foundation asked practicing lawyers to rank a list of 17
"skills" in terms of their importance to the profession, the lawyers
placed the art of communication, both written and oral, at the very top
of the list - it was, in the foundation's words, "in a class by
Unquestionably, the brief is the appellate lawyer's most important
tool; it represents the one time when you will have the full attention
of each deciding judge independently focused on your position in the
case. And, 90 to 95 percent of the time, it represents your only shot at
the court. While the Wisconsin Court of Appeals - where, it is
estimated, more than 95 percent of all Wisconsin appeals are finally
determined - will generally schedule oral argument whenever both parties
so request, the fact remains that the great majority of cases in that
court are decided on briefs alone. Fewer than 10 percent are argued
Persuasive communication is equally important in the trial court.
Like their appellate counterparts, trial judges are busy people, with
limited time and resources to devote to lawyers' submissions. The more
lawyers can do to make the judges' task easier at any level - by
communicating clearly and concisely with them - the more they will be
doing for their clients. So while the emphasis in what follows will be
on the appellate brief, most of the points made will be equally
applicable to written submissions in circuit court.
The brief serves several functions. It is, first and
foremost, the vehicle for transmitting to the judges the necessary
information about your case and the arguments in support of your
position. But even the nonargumentative portions of the appellate brief
- the table of contents, the statement of issues, and the table of cases
- can serve a persuasive purpose. While they are not arguments in
themselves (and should never be argumentatively phrased), they
make the judges' task easier and less time-consuming, for they serve not
only as an introduction to the case but also as the judges' guide - a
roadmap providing ongoing assistance throughout the deliberative,
decisional, and opinion-writing stages of the appeal. As such, they are
a part of the persuasive process.
It was estimated several years ago that, on average, each U.S.
Supreme Court justice had no more than two hours to devote to reading
the briefs in a case before casting his or her first vote on the
decision.3 Today that time is undoubtedly
even shorter; and it can be very much shorter on a busy state appellate
court. Each judge on the Wisconsin Court of Appeals, for example, reads
a minimum of 20 to 24 sets of briefs each month - sometimes closer to
30. And the judges do this while writing opinions in cases decided
during the previous month and undertaking a variety of other tasks as
well. Since most of the judges write between three and six opinions each
month, taking two hours to read the briefs in each case would result in
devoting two weeks each month just to reading briefs. Given the court's
caseload, that's a practical, as well as a physical, impossibility. In
my experience, an hour's time for a first reading would be a generous
estimate. I would set it closer to 30 minutes (and falling).
With that in mind, it is worth emphasizing that a brief is,
essentially, a document from which busy judges need to be able to
quickly extract the gist of the case. Without exception, then, a
persuasive brief must be both concise and readable, written in a manner
and style conducive to gaining and holding the reader's interest. It may
be, in a given case, that the facts and/or law will be so strong as to
compel a decision in a party's favor even though that party submitted a
carelessly-prepared, distracting, or even incomprehensible brief; but
the outcome in most appeals is much less clear-cut. And in those cases,
the winning party will usually be the one whose brief best presented the
underlying information about the case and was the most carefully and
effectively organized and drafted - and thus the most readily
Prof. Rodell's critical view of legal writing need not carry the day.
An appellate brief that pays careful attention to content and style will
most effectively communicate your position to the court; it will, in a
word, be a persuasive brief.
Table of Contents. A brief's content is dictated in
part by statute and rule. First, there must be a table of contents - and
this is an element of the brief whose importance should not be
underestimated. Lawyers should remember that time is of the essence in a
busy appellate court. A well-organized and informative table of contents
will allow the judges to quickly access your arguments - often in
response to points made by your opponent - and will make assimilation of
the elements of your position much easier for them. The table is even
more important to the judge to whom the writing of the opinion is
eventually assigned, allowing him or her to move efficiently through the
drafting process. If the table of contents is poorly done or incomplete
- if it fails to separate and index the components of the arguments
being made - the judge can easily take wrong turns and grow increasingly
frustrated as he or she is forced to spend needless time paging back and
forth through the briefs looking for points and counterpoints. Few
things make an appellate judge's heart sink faster than a table of
contents that looks like this (and, believe me, this example is not
|Table of Cases
|Statement of the Issues
|Statement on Oral Argument
|Statement of the Case
A table like that says nothing and is of no help whatsoever to the
judges. Do them - and thus your client and yourself - a real favor. Give
them a hand with a table like this (again, from an actual brief):
||The trial court erroneously refused to
include International Widgets on the Special Verdict.
The Court of Appeals reviews this issue de novo.
|There was sufficient evidence
to include I. W. on the verdict.
|The trial court erred in interpreting sec.
895.85(3) to mean that punitive damages are appropriate when, without
more, a defendant intentionally violates the plaintiff's right to
|The Court of Appeals reviews this issue
||In Wisconsin, punitive damages are
warranted only if the defendant intends the consequences of his or her
misconduct or is aware that his or her conduct is practically certain to
The trial court held, and the plaintiffs conceded that I.W. did not
intend to cause injury to anyone
and so on.
Statement of the Issues. Appellate briefs also are
required to contain a statement of the issues for review. Great care
should be taken in framing and setting forth the issues, for they are
generally the first thing judges look for when they pick up the brief.
The statement should be no less concise - and no less thoughtfully
written - than the substantive portions of the brief. But it is
not the place to be argumentative. Statements even faintly
resembling the following will start you off at a disadvantage:
"The first issue is whether the trial court erred where, contrary to
the overwhelming weight of legal authority, and on facts which no
reasonable person could conceivably consider as supporting its
conclusion, it ruled that the defendant should not be held to have had
constructive knowledge of the existence of a nuisance on her property -
a gaping hole in the ground into which the young plaintiff in this case
innocently and unwittingly fell, incurring the grievous injuries for
which he now seeks redress."
The same is true with respect to the Statement on Oral Argument and
Publication; it's no place for argument. The case is not arguable or
publishable because your arguments are so good and your opponent's so
horrible, or because the trial judge was so terribly wrong (or right).
It is arguable or publishable only for the reasons set forth in section
(Rule) 809.23 of the Wisconsin Statutes.
A second point is, again, to keep it short. The judges are interested
in knowing the issues in broad and general form. How easy it is to
distract them from that purpose with an issue statement such as this one
(from a brief filed with the court several years ago):
"Did a stipulation entered into between the parties in a real estate
foreclosure action relieve the defendant bank of its obligation to apply
to the trial court for an order confirming the commercial reasonableness
of its disposition of plaintiff's farm personal property replevied under
section 424.205, Wis. Stats., and section 409.54, Wis. Stats., as
interpreted by the Wisconsin Court of Appeals in Southern Wisconsin
Cattle Credit Company v. Lemkau, 140 Wis. 2d 830, 412 N.W.2d 159
(Ct. App. 1987), thus making it appropriate for the trial court to deny
plaintiff's motion for partial summary judgment on liability in her
subsequent action under the Wisconsin Consumer Act and appropriately
grant defendant's motion for summary judgment on her claims under the
Wisconsin Consumer Act?"
The intentional (or reckless) writing of a sentence that long should
be at least a Class B felony. How much simpler - and effective - to
"Did the trial court err when it granted summary judgment dismissing
plaintiff's action against the defendant bank for improperly disposing
of replevied property where the parties previously had stipulated that
the bank was under no obligation to justify the commercial
reasonableness of its sale of the goods?"
Statement of the Facts. The first substantive
section of the brief is the Statement of the Facts. (The required
Statement of the Issues should be no more than a brief setting of the
procedural stage.) The Statement of the Facts should be given no less
attention than the arguments that are to follow; for it provides the
judges' first exposure to the narrative of the case, and the way it is
written will often determine the interest (or lack of interest) with
which they will approach the brief as a whole. The basic rules are
simple. The facts must be stated with absolute, uncompromising accuracy.
They should never be overstated - or understated, or "fudged" - in any
manner. Nor should the statement include facts that are not relevant or
material to the issues on appeal. The recitation that the appellant is a
Wisconsin corporation, chartered in 1955, and is engaged in the
manufacture of widgets, with its principal place of business in
Milwaukee, and so on, adds nothing to the plaintiff's argument in a case
in which the only issue is whether the company's president wrongfully
fired an employee for insubordination.
Lawyers love narrative - and they adore dates and places. If the
issue is whether a drill press on which an employee was injured while on
the job was defectively designed and manufactured, the brief doesn't
need to begin: "On July 21, 2001, a partially overcast day, with only
limited sunlight in the morning hours, the plaintiff drove from his home
in New Berlin to the International Widget plant on Roosevelt Road in
Waukesha, arriving at approximately 7:33 a.m. and reporting to his
station at the drill press 11 minutes later, at 7:44, to begin his day's
work." When a judge sees a recitation in a brief stating "On Oct. 25,
1998...," or "At 5:30 a.m. ...," he or she will assume the date or time
is significant to the issues in the case and will usually take pains to
remember it. And when, pages later, it turns out to be wholly
irrelevant, the judge will feel duped - a feeling that often leads to
irritability and impatience. I would consider that a less-than-desirable
start for one's case.
A persuasive brief is, then, one where care and attention have been
given to the purpose and the importance of its nonsubstantive parts. It
is one where ample thought has been applied to its content: not only
what goes in but, equally importantly, what should be left out. And it
is one in which the facts are simply, accurately, concisely - and
honestly - stated, and the discussion limited to only those facts that
are plainly relevant to the issues on appeal. Finally, a persuasive
brief is one written with as much style and grace as possible.
Organization. Style has to do not only with the way
a document is written, but also with its organization. Indeed, the term
really covers the brief from start to finish; for if the brief's content
- everything the lawyer is putting before the court - isn't set forth in
a style or manner that is clear and engaging, the brief's persuasive
effect will be seriously diluted.
The importance of organization to the argument portion of the brief
should be obvious. Few things in the appellate judges' world are more
frustrating than, while in the middle of studying a brief - or, worse
yet, writing an opinion - having to search back and forth through the
text to locate a key point or argument. In the respondent's case, every
effort should be made to track the points and issues as they are
discussed in the appellant's brief. Time devoted to "charting" or
diagramming where the various arguments and counter-arguments appear in
the brief diverts the judge's attention (and time) away from those
arguments. It is time that will never be made up.
The arguments should, of course, be made in the most logical order.
That nearly always means stating the strongest, best-supported position
first, followed by ancillary or alternative arguments. And put away the
shotgun. Most judges will tell you that the very best lawyers they see
are the ones who know when to stop - who realize that if they can't get
through to you with their three or four strongest arguments, they are
not apt to get your attention with the 12th and 13th. As Steven Stark, a
legal writing instructor at the Harvard Law School, has pointed out, too
many lawyers approach brief writing as if they were cocktail waiters,
saying, in effect, "Here are five arguments, your honor; take one" -
when they really should be telling the judge which one to take.4 This doesn't mean that you can't make four or five
arguments if you feel compelled to do so; but you should be prepared to
devote 90 percent of your brief to the best two or three.
Jargon. As for lawyers and graceful writing - two
subjects rarely used in a single sentence - it has been said (and few, I
am sure, will disagree) that good legal writing does not sound as though
it was written by a lawyer.5 Good legal
writing, like good writing in general, is writing that keeps the
readers' interests foremost. Good writers always write for their
readers, and that concept should be even more important to lawyers
attempting to communicate with judges.
It is true that certain conventions must be followed in the law and
thus, of necessity, in legal briefs. But that is not to say, as too many
practitioners seem to believe, that the lawyer's job is to emulate the
writing style of long-gone judges or law professors - the style we all
learned in law school (and many of us just can't shake). One of the
major culprits in this area, and one of the most effective bars to
communication in any field, is the use of jargon: in our trade,
"legalese." Lawyers whose briefs are studded with "thereunders,"
"hereinafters," "hereinaboves," "arguendoes," and "saids" (as one lawyer
put it: "The facts with respect to said arrearage warrant said
cancellation") are really communicating only with themselves. Isolated
legalisms may have a place in certain types of contracts or pleadings,
although I sincerely doubt it. But they have no place in polite
conversation: "I liked the pie. Said pie is the best I've tasted." "The
mountains were beautiful, but the foothills thereunder were less
impressive than I had heretofore thought." They are equally
inappropriate in a brief.
Relevancy. There also are lawyers who are singularly
devoted to what I call double-identification. They love unnecessary
parentheses; and the more unnecessary the better - even if the only sure
result is the reader's total loss of interest in what's being said.
Witness the following (from another brief):
"This appeal arises out of a note (the "note") that Peter and
Patricia Smith (collectively "Smiths") executed to Patrick Brown
("Brown"). To secure the note, Smiths executed a mortgage ("the
mortgage") for certain real property ("the real property") and a lien on
certain personal property ("the personal property") as further security
for the note."
Two sentences and six wholly unnecessary parenthetical repetitions.
Excusable, perhaps, if the lawyer is 127 years old and was apprenticed
in his youth to Silas Pinney, but never welcome in any piece of
writing by anyone younger.
Other lawyers exhibit an uncontrollable urge to showcase all the
irrelevant bits and pieces of knowledge accumulated during all those
years in school. Here, taken from another brief, is how one lawyer
analyzed the rule allowing lay opinions into evidence - in a pedantic
style calculated to detract from any legal point the writer was
attempting to make:
"The rule is nothing but a commonsense recognition of the way in
which all of us speak and think in the ordinary affairs of life. We do
not commonly use the Phenomenological approach of radical
epistemologists like the philosopher Husserl, but more commonly employ
shorthand conclusions based upon our perceptions, and we are often hard
pressed to articulate with any precision the details of the perceptions
upon which our judgment is based."
Footnotes. A brief word about footnotes. While I am
generally comfortable with them, many judges are not. As in most other
affairs of life, I would say that moderation should be the rule; keeping
in mind, perhaps, Noël Coward's observation that "[h]aving to read
a footnote resembles having to go downstairs to answer the door while in
the midst of making love."6 In other words,
it better be good.
Conciseness. Even the most complex concepts can be
made palatable and understandable if they are well presented to the
reader. A brief that is readable and to-the-point will make it much
easier for the judges to understand and quickly grasp your points, and
they will be encouraged to spend more time with your arguments.
Unnecessary length, on the other hand, will often result in your
strongest points getting lost in the shuffle.
To be clear and concise in your writing does not mean four-word,
stilted sentences. Your brief doesn't have to look like a telegram to be
clear. Indeed, a sentence can be quite long and still "ring."
Conciseness doesn't mean fewer words; it is the omission of needless
words. Strunk and White, in their wonderful little book The Elements
of Style (a book I regularly placed on my new law clerk's desk on
his or her first day on the job), explain the concept perfectly. They do
it in two moderately long, yet concise - and very graceful -
"A sentence should contain no unnecessary words, and a paragraph no
unnecessary sentences, for the same reason that a drawing should have no
unnecessary lines and a machine no unnecessary parts. This requires not
that the writer make all of his sentences short, or that he avoid all
detail and treat his subjects only in outline, but that every word
Grace. To be sure, legal writing has its limits. The
legal writer doesn't have the creative writer's freedom to follow
flights of imagination or to take literary liberties (or to be overly
alliterative). Facts can't be changed to heighten the reader's interest,
or legal rules misstated in order to construct a graceful sentence. And
it is counter-productive for lawyers to indulge in novelty for its own
sake. But that doesn't mean there is no room in a brief for the graceful
or memorable phrase, sentence, or paragraph. Graceful legal writing
didn't die with Holmes and Cardozo.
Here's an example. A case in the Wisconsin Supreme Court several
years ago involved a challenge to the governor's line-item veto power in
which the challenging parties included the following summary of their
argument in the introductory portions of their brief.
"Wisconsin and all but seven other states have given their governors
the power to veto appropriation bills by line, by item, or by part. Yet
in no state has any governor ever pushed that constitutional provision
to the extremes that characterize the partial vetoes in the 1987-89
budget bill. With those vetoes, the governor alone wrote new law - with
letters and digits, with words and fragments - from an alphabet provided
by the legislature.
"The issue in this case is not whether Wisconsin will continue to
have a partial veto, and not even whether that authority will continue
to be construed broadly. The issue is whether there are any limits on
the governor's powers.
"The partial veto began as a necessary and appropriate check on the
legislative power. But it has now become a formidable instrument of
governmental power on its own, for it allows governors to write their
own laws. And those laws, with the approval of but a handful of
legislators, are 'veto-proof.' Thus, what was intended to be a simple
'check' in the system of checks and balances has now grown to such size
that it threatens to upset the delicate balance between the legislative
and executive branches of government.
"This court has decided only five cases involving the partial veto;
and none addressed the letter, digit, and individual word vetoes at
issue here. But the court's decisions have been used by governors of
both parties as a license to write budget laws - a process historically
the province of the legislature.
"In this case, the court inevitably must decide whether governors
have abused their partial veto authority, and with it the faith of this
That brief summary tells the judges, in a clear, eminently readable,
and effective way, that there are some very important issues at stake in
the case, and it makes them want to jump right into the lawyer's
A piece appeared in the New York Times a few years ago
recounting the careers of two venerated sportscasters, Red Barber and
Vin Scully. It is a nonlegal example of style (and grace) in
communication. The article quoted Scully's radio-broadcast description
of a double play in which the batter, with one man on base, hit a long
fly ball to center field, which the fielder caught (spectacularly!)
while falling against the wall, spun around and threw to the infield,
doubling off the base runner. After describing the play on-the-spot with
wonderful clarity, Scully concluded: "Scioscia hit the ball as wide and
as deep as the August sky and has come away with only the dust of a
double play to show for it."7 If grace can
be found in a baseball broadcast, it certainly has its place in an
appellate brief. Take my word for it, the judges will love it (and,
hopefully, they'll find some way to say "thank you").
And Rewrite Again
When the brief is completed - when you feel you've gone over it, and
over it again, well beyond the call of duty (or the contents of your
client's wallet) - go over it just one more time. Justice Brandeis
once remarked that there is no such thing as good writing - there is
just good rewriting; and he was right. I understand that time is at a
premium for busy lawyers, just as it is for busy judges, but rewriting
is essential to good writing, just as good writing is essential to a
Candor. Remember that a good brief takes into
account the weaknesses, as well as the strengths, of the argument. It's
not just a matter of candor, which is unquestionably important to any
brief, but of effectiveness. Attempting to hide or circumvent weaknesses
in your position is counterproductive. It will be seen as a transparent
effort to distract the judges and will serve only to emphasize the
weakness. How much better to face it head-on and attempt to show the
court why your position should prevail despite the occasional
uncertainties - which are, after all, present in even the best of cases.
The judges will respect your candor and quite possibly cut you a little
Courtesy. Courtesy is an often-overlooked element of
an effective brief. Improper tone is a self-created impediment to
communicating your position to the court. Casting aspersions on your
adversary throws a shadow on your own standards and on the strength of
your argument. Trashing your opponent or, perhaps worse yet - from the
judges' standpoint, at least - trashing the trial court, will, at best,
distract the judges from your arguments. At worst, it will irritate
them; and that, I am sure, is not what you want. Most appellate judges
were themselves trial court judges. Even if they weren't, when they see
you bashing a trial court judge, they'll assume you'll be doing the same
to them when, after losing your appeal, you petition the supreme court
for review. I recall a note from a supreme court justice some years ago
pointing out that a lawyer had prem-ised his petition for review of one
of our cases on the proposition that review should be granted "in order
to teach the court of appeals a lesson!" I'm sure that, somewhere along
the line, one or more of my colleagues made a mental note of that
In brief writing, as in any art, the writer makes his or her points
most tellingly with quality, not quantity. An interesting, concise,
well-organized, and well-written brief is one that is likely to hold the
judge's attention from beginning to end. One observer has called judges
"professional buyers of ideas."8 They listen
to salespeople every day. They pay attention to good presentations, not
just because they are required to make a decision, but because they
depend on you, the attorneys, for essential facts and ideas. Judges are
conversant with the law in general, and in their search for rules that
will do justice and equity they look to you for guidance. They need you,
the advocates, with your great understanding of the parties and their
dispute, to show them why the result you seek is the soundest of
available alternatives, and the one that will bring about a just result
for the parties, the public, and the development of the law.
Finally, judges need you to personalize the process - to give it
life; to relate it not only to that great and impersonal body of law but
also to the people for whom the courts on which they sit were created to
And being able to accomplish all that through words, written and
spoken, seems to me to be one of the lawyer's highest and most rewarding
Goodbye to Law Reviews, 23 U. Va. L. Rev. 38 (1936).
Bryant Garth & Joanne Martin, Law Schools and the Construction
of Competence, 43 J. Legal Educ. 469, 477 (1993). See also
Joseph Kimball, Notes Toward Better Legal Writing, 5 Scribes J.
of Legal Writing 142 (1994-95).
Supreme Court, 1958 Term, Foreword: The Time Chart of the Justices,
73 Harv. L. Rev. 84, 91 (1959).
interviewed in Lawyer's Weekly USA, Feb. 26, 1996.
Wydick, Plain English for Lawyers, 66 Calif. L. Rev. 727, 728
The Footnote: A Curious History 70 (Cambridge, Mass.: Harvard
University Press, 1999).
7N.Y. Times, Oct.
14, 1990, at 35.
Peck, Writing Persuasive Briefs, Aspen Law & Business