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    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.

    William Eich

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    Wisconsin Lawyer
    Vol. 76, No. 2, February 2003

    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.

    Sidebars:

    by Judge William Eich

    woman writingThe late 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 itself."2

    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 orally.

    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 understandable.

    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.

    Content

    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 unusual):

    I.
    Table of Cases
    1
    II.
    Statement of the Issues
    3
    III.
    Statement on Oral Argument
    4
    IV.
    Statement of the Case
    5
    V.
    Argument
    6
    VI.
    Conclusion
    46

    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):

    V.   Argument
    1
      A. The trial court erroneously refused to include International Widgets on the Special Verdict. 6
     

    1.

    The Court of Appeals reviews this issue de novo.

    7

     

    2.

    There was sufficient evidence to include I. W. on the verdict.

    9

      B.
    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 safety. 14
      1.
    The Court of Appeals reviews this issue de novo. 16
      2. 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 cause injury 18
      3.

    The trial court held, and the plaintiffs conceded that I.W. did not intend to cause injury to anyone

    and so on.

    23

    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 say:

    "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.

    Style

    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 - sentences.

    "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 tell."

    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 court."

    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 arguments.

    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 persuasive brief.

    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 slack.

    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 lawyer's name.

    Conclusion

    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 serve.

    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 tasks.

    Endnotes

    1Rodell, Goodbye to Law Reviews, 23 U. Va. L. Rev. 38 (1936).

    2Reported in 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).

    3Hart, The Supreme Court, 1958 Term, Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84, 91 (1959).

    4Steven Stark, interviewed in Lawyer's Weekly USA, Feb. 26, 1996.

    5See Wydick, Plain English for Lawyers, 66 Calif. L. Rev. 727, 728 (1978).

    6A. Grafton, The Footnote: A Curious History 70 (Cambridge, Mass.: Harvard University Press, 1999).

    7N.Y. Times, Oct. 14, 1990, at 35.

    8See Peck, Writing Persuasive Briefs, Aspen Law & Business (1995).




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