In the Fall 2010 issue of the ABA Journal of the Section of Litigation (Vol. 37, No. 1), retired Florida judge Larry A.Klein provides much excellent and insightful advise on brief writing. As decision makers, we've all been presented with some great briefs and some awful ones and, as Judge Klein notes, it is sometimes even very qualified, well-regarded counsel that make the following mistakes. Moreover, the tips are so perfectly suited to all legal writing that I have made a number of notes to myself to watch out for in the future.
First and foremost, Judge Klein warns against flowery, overblown prose. He says very clearly what we have all thought before: that most courts or decision makers "reading this type of hyperbole would immediately assume the [party] cannot make its case on the merits." He adds the reminder "that you are not a member of the audience for your brief, and neither is your client."
Next, Judge Klein reminds lawyers to address facts clearly, candidly and fairly. "The last thing you want is for a judge to first find out about these adverse facts in the [opposing party's] brief. An honest presentation, which recognizes the weaknesses as well as the strengths of your case, is crucial for making a good first impression. Omissions can also damage your professional reputation in general among.the ... judiciary, and credibility is everything."
Judge Klein also gives a couple of nice "obvious" nuggets--nice because they are so obvious many overlook them . First, don't reiterate the same facts your opposing party's brief has already stated. If they are fair facts admit them, and elaborate or emphasize certain items in the argument section. It will only annoy your judge to realized he combed through redundant facts looking for something new. Second, don't bother restating the issue unless you actually improve it, and you do so objectively.
Finally, the judge closes with a series of points geared to adding overall clarity and readability, the most helpful of which I found to be the following
1. use descriptive party identifiers, because "appellant/appellee" or "Jones and Smith" are too hard to keep track of;
2. limit the use of dates unless relevant;
3. limit footnotes to potentially helpful but tangential information, and introduce with lead in sentence in the body, so the reader can decide if he or she wants to read the footnote; and
4. before giving entirely new information, show its connection to the foregoing information.
Following this sage advise, the files of justice will be much more pleasant, comprehensible and compelling.
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