A brief is a functional document, and it functions in different ways at different stages in the decision-making process.
As noted earlier, the judges and the clerks who see your brief wear two different hats. As “readers,” they move through pages, paragraphs, and sentences sequentially, and they need valid, well-supported legal arguments; a reasonable organizational scheme; and coherent sentence structures.
As “users,” they scavenge through the document, searching for the point they care about, or trying to figure out what point is being made in a particular sentence, section, or paragraph so they can decide whether to continue reading it. Users need all the things that readers need, but they need something more: Users need finding tools, the signals that announce what is going on in various parts of the document.Briefs are also vital in oral argument: The judges may review the brief before the argument to understand how the law and the facts support that argument. After the argument — or if there is no argument — one or more of the judges and clerks may use the brief to help them write the opinion. Thus, your audience will have different needs at different times, and your brief must meet these different needs. The first time the brief is reviewed, readers must be able to understand how the different parts of the argument work together to support the conclusion you want the court to reach. Later, users must be able to find particular points and authorities.
Furthermore, your audience will have different needs depending not only on when they encounter the brief, but also on how they encounter it. Our brains work differently when we are reading digital documents than when we are reading hard copy. Accordingly, you should be sure that your brief will be readable in any format.
When most judges and clerks consult your brief, they will not be reading it the way you might read a favorite novel. Instead, they will be trying to find the parts they care about.
As one commentator noted in the Harvard Law Review back in 1959, the brief writer cannot expect the complete and undivided attention of every judge:[W]ritten arguments filed with the Court are not documents like law review essays which the author is entitled to expect each of [the] readers to peruse carefully and reflectively from beginning to end. Perhaps the writer of an opinion reads a brief this way. But for other members of the Court these documents necessarily serve a different function than the communication simply of a connected line of thought. They are documents from which busy [people] have to extract the gist in a hurry.... Briefs on the merits need not only tell their story to one who takes the time to read all the way through them, but to be so organized that they can be used, like a
book of reference, for quick illumination on any particular point of concern.1
Because your document will be used, not just read, it not only must be focused and well organized, but it also must highlight that focus and organization for those who are reading and using the document in both its hard-copy and digital forms.
Even after you have written a complete draft that says what you want it to say, it may still be only a “writer-based” document. That is, it is a document that only the writer can understand and use effectively. At this stage of the writing process, it is time to remember the lessons of the social perspective school of writing theory: Consider the needs of your audience and make your document a “reader-based” and “user-based” document, a document that is written and organized to promote understanding by others, no matter when or how they are encountering the document.
There are various techniques that you can use to make your documents both readerfriendly and user-friendly. First, include explicit connections so that the reader can understand how each part of the argument supports your thesis. Second, through this technique and others, make sure that you provide the reader with context when necessary. Finally, use headings, topic sentences, and other techniques to make sure that the user can easily find information within the document. As you will see, these techniques have substantive as well as organizational benefits to both hard-copy and digital readers.