1.3 FOLLOW ANEFFECTIVEWRITINGPROCESS

Because your reader is so busy, you should keep four policies in mind as you make your brief-writing decisions: (1) The law upon which you base your argument should be complete and accurate.

No judge wants to waste time considering arguments that must be rejected. Furthermore, if you have failed to identify a significant legal authority or an important legal, ethical, or policy argument, you should presume that no one else will dig it up either. (2) Your arguments must be organized and written in a way that makes them easy to read and understand. Write with your audience in mind, and presume that your audience is intelligent but ignorant of the specifics of your case. If your readers can’t understand your point without a struggle, they probably won’t understand it at all. (3) You must avoid mechanical problems of all types. First, as a matter of professionalism, you should follow the local rules of the court about format requirements and other ancillary matters. In some courts, failure to follow the rules will get a case dismissed; in others, it may result in your brief being returned so that you can try again to comply with the rules. Even if you escape these sanctions, you hurt your credibility with the court when you make technical mistakes.¹³ Second, proofread carefully to avoid typographical errors, citation form errors, and mistakes in citations (e.g., transposed page or paragraph numbers). Although these errors may not seem legally significant, they waste time and hence annoy the reader. (4) You should use persuasive techniques that make the most of your facts and your arguments but that do not violate ethical rules or otherwise hamper your credibility with the court. If your persuasive methods go too far, all of the work you have devoted to writing a legally valid, well-organized, and error-free document will be wasted.

The court may well discount valid arguments, or even stop reading your brief, if it believes that you cannot be trusted. Not coincidentally, these four policies represent four different focuses in the writing process. It is impossible to make each of these focuses totally separate. For example, you cannot help but notice your content while you are reviewing your organization. By forcing yourself to pay special attention to each of these areas, however, you make it easier to create an effective brief. Keeping these concepts in mind may be easier if you connect them to a little bit of writing theory. Although there are many more sophisticated ways of talking about the schools of writing theory, two schools are particularly significant for legal writing. One is the cognitivist school, and another is the social perspective school.¹⁴ The cognitivist school teaches that writing is a way to think about things and to learn about them. If you are thinking in cognitivist terms as you write, you are not writing for someone to read your writing; you are merely writing to figure out what you know about something or to generate new thoughts or knowledge about your topic. Although many people used to think that writing was merely a way for us to record our already completed thoughts,¹⁵we now realize that writing is more than the hands taking dictation from the brain. When we write, we engage in brainstorming with ourselves. We question and challenge our presumptions, discover new ways of thinking about something, and gain insights that had not occurred to us before we began to write. The cognitivist theory of writing helps legal writers to understand the benefits of multiple drafts. Writing multiple drafts of the same document allows you to let at least one of the drafts be a “working draft” or a “thinking draft” — that is, a draft you can write without worrying about what the reader thinks or about whether the reader will understand you. In this way you can use the process of writing to understand your issues better, discover what aspects of your writing need more research and analysis, and clarify your legal thinking.

The second school of writing theory that is particularly relevant to legal writing is the social perspective school. The social perspective school tells us that writers must understand the needs and expectations of their audiences and write in a way that meets those needs and expectations. For example, if you were asked to draft an opinion letter for a client who happens to be a lawyer, you would write it very differently than if you were asked to write a similar letter for a client who is not a lawyer. The social perspective school of writing theory reminds you to think about “readers” and “users” and about judges’ workload and attention span. When legal writers are writing an appellate brief, for example, they may have particular formal requirements that they must meet. They could be required to include a table of contents, a table of authorities, a statement of the case, a statement of the issue, an argument, and a conclusion. Judges and the clerks might be confused, frustrated, or even angry if the brief writer violated their expectations by not including the required elements. Writers who keep writing theory in mind will first allow themselves to spend time researching, brainstorming, drafting, and using other techniques to think about the problem in creative ways, so that they fully understand the message that they intend to convey. Only after gaining sufficient understanding of the message will they pay particular attention to the reader’s needs and requirements. Of course, legal writers should keep the reader’s needs in mind from the early stages of the process. Paying attention to many of the reader’s needs — for example, the need for clear articulation of the rule, the need for discussion of one issue at a time, the need for an explication of the meaning of the legal rule — will also help the writer in the cognitive stages to gain a fuller understanding of the legal issues that the case presents.

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Source: Beazley Mary Beth. A Practical Guide to Appellate Advocacy. Fifth Edition. — Wolters Kluwer Law,2018. — 475 p.. 2018

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