1.4 HOW TOUSETHISBOOK
In this book, you will learn about techniques to help you to advance each of the policies noted previously and thus to write a better brief, whether for an appellate court or a trial court.
(To see a sample of both an appellate brief and a motion brief, consult Appendix C.) Although you are writing with the complete end product in mind, your end product will usually be better if you follow a writing process that focuses your attention on only one task at a time.As you begin your writing process, focus your attention on gaining an understanding of the legal issues that your case presents and of the legal authorities that govern those issues. Get to know the facts of the case, and plan and execute your research. Chapter Three will give you advice on getting to know your record and planning your research.
When your research is fairly complete, focus your attention on how to structure your argument. You might even write a rough draft of your argument as a method of trying to understand how the law and the facts relate. After you have gained an understanding of how the legal issues of your case relate to the legal authorities, use the rewriting stage of the writing process to think about how best to organize the document so that your reader will be able to understand the legal issues as well as you do. You can do this by writing a draft of just the argument section of the document that (1) uses the arguments and authorities that you think are necessary, (2) uses an effective large-scale organization, and (3) includes a full analysis of each legal issue. Because this type of draft is focused on large-scale, or macro, concerns, you may wish to think of it as a macro draft. Chapters Four and Five will help you as you rough out your argument and plan its structure.
After you have created a macro draft of some kind, review and revise your written argument a few times, focusing on these two important features of content and organization.
Check your authorities, and supplement your research if necessary. Eliminate weak arguments, and devote your attention to the strong ones. Make sure that each section of the argument is focused on just one point. Chapter Six will help you to examine your use of case authority, while Chapter Seven will help you to review your use of statutory authority.Next, create a draft of the entire document, including everything from the cover page to the certificate of service. Because this type of draft broadens its focus to include smallscale, or micro, concerns, you may wish to think of it as a micro draft. Chapter Eight identifies and describes the elements that courts commonly require in appellate briefs and motion briefs.
After you have created your micro draft, review the way that you have presented your arguments. For example, make sure that you have laid out your arguments clearly and organized them well. Take a look at the signals you are sending to the reader and the user through your headings, roadmaps, and topic sentences, and revise them as needed. Evaluate your statement of the case to verify that it presents the facts in a positive light without stretching the truth. Review each element of the brief in this way to make sure that you are presenting an accurate and effective legal argument. Chapter Ten will help you to make your document more user-friendly, while Chapters Nine and Eleven will help you to use persuasive writing techniques both in the argument and in those special elements such as the question presented, statement of the case, and the summary of the argument.
In the polishing stage of the writing process, pay attention to sentence structure, grammar, citation form, and format details so that you create a final draft that is complete, well structured, and free from distracting technical errors. Chapter Twelve will give you guidance on objective techniques you can use to make your document error-free.
Even before you are finished writing the brief, you should be considering the oral argument.
Of course, the brief, in large measure, will dictate the oral argument, but a practice oral argument can also help you to write your brief. You may want to hold a moot court while you are still writing the brief, perhaps even while you are working on the first draft of your argument. Preparing for an oral as opposed to a written presentation will force you to confront your issues and arguments from a different point of view. As you argue, you may realize the strengths of certain arguments and the weaknesses of others. The process can result in significant substantive or structural changes in your written product. Chapter Thirteen gives you advice on preparing an effective oral argument; Chapter Fourteen addresses using oral argument and brief-writing skills in moot court competitions.As you work on all of these tasks, you might keep in mind one of Aesop’s lesser-known fables, about an argument between the sun and the wind:
The Wind and the Sun were disputing which was the stronger. Suddenly they saw a traveler coming down the road, and the Sun said: “I see a way to decide our dispute. Whichever of us can cause that traveler to take off his cloak shall be regarded as the stronger. You begin.” So the Sun retired behind a cloud, and the Wind began to blow as hard as it could upon the traveler. But the harder he blew the more closely did the traveler wrap his cloak round him, till at last the Wind had to give up in despair. Then the Sun came out and shone in all his glory upon the traveler, who, finding it too hot to walk with his cloak on, soon took it off.
The moral of this fable is that “kindness effects more than severity,”16 or, to put it another way, “you catch more flies with honey than with vinegar.” Like the sun and the wind, you are trying to get someone to do something when you act as an advocate. To be most effective as an advocate, however, you must be both the sun and the wind. As the wind, you use the law and the facts to show the court that it must reach a decision in your client’s favor. As the sun, you use persuasive writing techniques to help the court realize that it wants to reach that decision.