1.1 BEFOREWEBEGIN
Okay, I’m going to start out by violating a principle of legal writing and ask you a question: Why are you reading this book? Let me guess — because you have to. You’ve been given a reading assignment in a course, or someone told you that you should read it to improve your writing.
As much as the fond author might hope that her readers look forward to reading her book with delight, the hard reality for textbook authors — and brief writers — is that people read their writing for a purpose, and not for pleasure. So here’s the first lesson of this text: People read differently when they read for a purpose, and because they read differently, you have to write differently.This book is about the practical side of appellate advocacy and brief writing, about recognizing the limits that every legal writer works with: factual limits, legal limits, and time limits. It’s also about recognizing and understanding the important decisions that you make every time you write a brief, so that you can do a better job making those decisions.
We all make thousands of decisions every day, both consciously and unconsciously. On some level, you have decided that your eyes are going to move across this page to read these words, and that at the end of each line, you will move your eyes to the left to start reading the next one. Many of your decisions are unconscious, or become unconscious, and they need to — you would go crazy if you had to decide consciously to read every word or to take every step when you walk. Just being reminded of the decisions we make, however, can help make us conscious of those decisions. I’m guessing, for example, that some of you became conscious of your eyeballs moving from left to right as you read this paragraph.
If we want to be better writers, we need to identify the important decisions that must be made, so that we can make them consciously and thus more effectively.
Too many of us go into default mode when we write. We don’t think about which issue we want to argue first, second, or third. We don’t identify what our best points are, and so we don’t consciously decide to state them as effectively as we can or to put them in the places in the document where we know that readers will be paying the most attention.And that’s the other thing most of us don’t think about, either: the people who read our briefs. We know that we’re writing a brief to a court, but too many of us, I fear, have some vague, dreamy notion that our brief is being read by a panel consisting of Oliver Wendell Holmes, Thurgood Marshall, and Sandra Day O’Connor — at the peak of their judicial and intellectual powers and on a free day with nothing to do but wonder at the fascinating complexities of our arguments.
Well, life’s not like that. First of all, many of your briefs will be read by law clerks as well as judges, and sometimes by law clerks alone. Your readers will be real people with real lives. People who have phones and computers that buzz and beep and bring them e-mails, and colleagues who knock on their doors and interrupt their work. Your readers are people with families and deadlines. They’re people a lot like you, except they’re a little further down the road than you are now, if you’re a law student, or they took a different road from yours, if you’re a practitioner.
So instead of reveling in the complexities of your argument or throwing a bunch of authorities at a busy law clerk, you have a different job to do. You have to look at those complexities and make them easy. You need to find and explain the rules and policies that govern your argument and show explicitly how they connect or don’t connect to your client’s case, and do it so clearly that the judges will wonder why they didn’t notice before how obvious the answer is. You’ll follow the law, of course — it’s no good writing clearly about legal rules that don’t exist. You’ll follow the court’s rules, too, so that unprofessional errors won’t distract the reader from your tight, clean argument.
And you’ll use honest persuasive techniques to make sure that your readers get the best opportunity to read and understand your arguments.You’ll remember that the audience for a brief wears two hats. You have to write for both the reader and the user. Most of us think of law clerks (and judges) as readers, who read the brief sequentially from beginning to end. At some point, however, they act as users: They are hunting for a particular authority or argument, or they want to know immediately what each sentence, paragraph, or section is about, because if it isn’t about what they care about, they want to skip it. So when you write and revise, you have to remember both the reader and the user, and write in a way that helps them both.
Furthermore, when considering the differences between readers and users, you need to consider whether they will encounter your text as a paper-and-toner document or in digital form. And of course that digital form may appear on a desktop or laptop computer, on an iPad or similar tablet, or on a smartphone. Modern readers are in a transition stage between paper text and digital text. For this reason, you must write for both paper and digital readers.
You should also be practical about your own behavior as a writer and self-editor. You’ll learn how to identify the important decisions that you have to make, and to take steps that will help you to recognize what information you’ve included and what information you’ve left out of your argument.
By being practical about both your audience’s needs and your needs, you can learn how to use the resources available to create documents that are easy to read and easy to use.