1.5 SUMMARY
People read and use briefs in a different way than they do books or news articles, and brief writers should write in a way that takes audience needs into account. No process can guarantee a perfect result, but it is practical to use a process that requires you to focus your attention on certain aspects of the document at the appropriate time.
Just as you probably would not paint the trim of a house before deciding what color to paint the walls, you should not fuss with grammar problems and format concerns before you have decided which authorities and arguments will be most effective in your case. By following an effective writing process, you help to ensure that — given the inevitable limitations of the law, the facts, and the deadlines — you will submit the best brief possible.
Chapter One Review
1. You must write for readers (who are reading content sequentially) and users (who have an agenda and are searching for particular information). 2. Make your writing easy to read: judges read 500-1000 briefs per year. 3. Make sure your analysis is legally accurate; it is well-organized; it is free from mechanical errors; and it uses effective, ethical persuasive techniques. 4. Plan a writing process that allows you to spend time on cognitive aspects of legal writing (understanding and developing your substance) and on social perspective aspects of legal writing (adjusting your writing for the needs and expectations of the audience). 5. One way to use the writing process is to write a macro draft (focused on large-scale issues like content and organization), a micro draft (where focus expands to include format requirements and signals to the reader), and a final draft. 6. Remember the Fable of the Sun and the Wind: You need to be like the wind, showing readers why the law requires the result you seek. You also need to be like the sun, and show readers why they should want the result you seek.
1 Courts sometimes give these documents other labels, including Trial Briefs and Memoranda of Points & Authorities. 2Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 182 (1999). 3 Federal Court Management Statistics, http://www.uscourts.gov/sites/default/files/fcms_na_appprofile1231.2017.pdf. See also Honorable Ruggero J. Aldisert, Meehan Rasch & Matthew P. Bartlett, Opinion Writing and Opinion Readers, 31 Cardozo L. Rev. 1, 7 (2009) (citing the 2008 report and noting that the average federal circuit judge wrote 152 opinions in 2008). 4See the 2015 Annual Report of the Indiana Court of Appeals, which indicates that all but one of the judges who served for the entire 12 months wrote over 100 majority opinions. https://www.in.gov/judiciary/appeals/files/2016-coaannual-report.pdf. See also 2009 Oregon Court of Appeals Annual Report, http://www.publications.ojd.state.or.us/2009CAReport.pdf (last visited Mar. 28, 2010) (noting that in 2009, the ten Oregon appellate judges “closed 3,609 cases, issued 2,173 case dispositional decisions, and issued 503 authored opinions”); Honorable Edwin H. Stern, Frustrations of an Intermediate Appellate Judge (and the Benefits of Being One in New Jersey), 60 Rutgers L. Rev. 971, 980 (2008) (“Each judge now writes an average of 108 opinions a year, independent of the cases disposed of by motion, sua sponte, or other order”); Daniel J. Foley, The Tennessee Court of Criminal Appeals: A Statistical Analysis, 66 Tenn. L. Rev. 427, 442 (1999) (citing National Ctr. for State Cts., Court Statistics Project, State Court Caseload Statistics, 1994, at 133-36 (1996)). 5Leigh Ingalls Saufley, The Judicial Process: Amphibians and Appellate Courts, 51 Me. L. Rev. 18, 19 (1999).
6William Eich, Writing the Persuasive Brief, 76 Wis. Law. 20, 22 (Feb. 2003). 7Judge Samuel A. Thumma, Writing Appellate Decisions: Observations of a Rookie Appellate Judge, Judges’ J., Winter
2014, at 32.
8 See statistics reported by the National Center for State Courts, http://www.courtstatistics.org/~/media/Microsites/Files/CSP/Appellate/PDFs/EWSC-2016-APP-Page-1-Trend.ashx. 9Honorable Helen E. Hoens, Writing Persuasively at the Trial Court Level: Practical Tips on Style and Substance, 210 N.J. Law. 9 (Aug. 2001). 10Honorable Sarah Evans Barker, Beyond Decisional Templates: The Role of Imaginative Justice in the Trial Court (Hallows Lecture), 92 Marq. L. Rev. 667, 674 (2009). 11See, e.g., Judge Stephanie Domitrovich, A Day in the Life of a General Jurisdiction Elected Trial Judge, Judges’ J., Spring 2017, at 31, 33. 12This book is meant to advise on methods of brief writing and oral argument. For advice on preserving issues forappeal and deciding whether to appeal, you should consult a reference geared to the jurisdiction in which you are practicing. See, e.g., Kristen Brown, G. Ronald Darlington, Daniel R. Schuckers, Patrick Cawley & Kevin J. McKeon, 20 Pennsylvania Appellate Practice 2017-2018 edition (Thomson Reuters); Bennett Evan Cooper, Federal Appellate Practice: Ninth Circuit, 2017-2018 edition (Thomson Reuters).
13 See generally Judith D. Fischer, Bareheaded and Barefaced Counsel: Courts React to Unprofessionalism in Lawyers’ Papers, 31 Suffolk U. L. Rev. 1, 20-36 (1997). See also, e.g., Judge Richard Ginkowski, Things You May Not Have Learned in Law School: 21 Motion Practice Tips for New Lawyers, Crim. Just., Fall 2016, at 10, 10 (“Know (and follow) local rules and practices”).
14See generally J. Christopher Rideout & Jill J. Ramsfield, Legal Writing: A Revised View, 69 Wash. L. Rev. 35 (1994). 15Philip C. Kissam, Thinking (By Writing) About Legal Writing, 40 Vand. L. Rev. 135, 138 (1987). 16http://aesopfables.com/cgi/aesop1.cgi?srch&fabl/TheWindandtheSun (last visited Apr. 14, 2018).