Home Management Writing a Brief that
Judges Will Want to Read
Writing a Brief that Judges Will Want to Read
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Writing a Brief that
Judges Will Want to Read

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Legal writing – or any writing – intrigues me mostly because you can tell almost all that you need to know about your opponent’s skill from the documents that he produces. If his legal analysis wanders through endless sentences and puked up commas, then it’s likely that his ability to argue that point is equally disorganized. But if the analysis is short and focused in getting to its point, then your opponent is a bit more indomitable. He is intellectually clear in his thoughts, can understand an issue against a rule with precision, and has the unique ability to communicate the result of that analysis. This is what makes your opponents afraid of you.

When I first wrote about legal writing several years ago it was because a friend of mine needed a space-filler for a legal newsletter. So I fluffed together the only thing I knew in the absence of any real practice otherwise: strong legal writing. Years later I still support this noble cause of ‘document sanity’ and advocate aggressively against slowly killing a judge with bad grammar and foggy thinking.

 

Conquering Unknown Laws: Digesting The Unappetizing.

Opening a solo practice just out of law school meant that I took on areas of law that I didn’t know existed. Indeed, I likely would have been better off and a more whole person if I never knew these areas existed. But being a starving lawyer in 2009 and beyond required that I take my best shot on cases that smarter, more solvent lawyers declined.

That being said, putting together a legal analysis on any issue meant that I started with laws that I just did not know. So I started with what I did know: the law library. Years later I now joke with the librarians at one of my favorite libraries that no one knows of this resource-filled land. It’s a far away world with books that will tell you how to complete your task, inventions called databases housing legal information that only the future can fathom, and fairy dust to blow on yourself once you open a book. Actually, that may just be regular dust accumulating since no one seems to visit law libraries anymore.

The advancing technological environment brings incredible resources to the legal community. New resources. Law libraries generally have the ability to pay for these resources. So do associations. Stuff that was once confined to a book – like Illinois Law and Practice which gives you an incredible roadmap on handling a case – is now electronically stored and waiting to be sent through e-mail to you. Now you can do an hour of research in minutes. This is important because if a judge or his clerk has to research a law they typically go to the law library in the courthouse. And they likely know how to use these resources as well as the law librarians themselves.

 

Trapping Your Audience And Piercing Your Opponent’s Legal Writing

The first time I worked with another attorney on a brief he sent me his draft of it as he started it. Good thing we live in the age of technology because I cannot hide my emotions. When I asked him if he knew what IRAC was he said ‘no’ but that he learned in law school – guess how many decades ago – that a legal analysis is supposed to provide a bridge for the judge. That explanation was as useless as his brief. It wandered through the endless sentences and puked up commas. It didn’t have a point. And the worst part was that I had to read it.

So how do we get to aggressive legal writing that eviscerates your opponent’s arguments? Simple. IRAC. IRAC stands for “Issue; Rule; Application; Conclusion.” The Issue (“I”) explains in one sentence the question the IRAC analysis will resolve. The Rule (“R”) establishes the controlling authority. But since the Rule sits on the coattails of the Issue it is wedged in with blunt force to choke out any objection that another Rule may apply. This permits the Application (“A”) to cherry-pick the necessary facts for a fine-point conclusion. The Conclusion (“C”) you need the judge to understand now spins with force against anything in its path namely the contrary arguments set forth by your opponent.

Strategically, your document needs to be front-loaded with the favorable IRAC analysis at the beginning for two reasons. First, it drives the judge immediately to the correct conclusion which, naturally, is yours. Second, it makes your opponent’s arguments easier to attack. Incidentally, each of your opponent’s arguments should receive its own IRAC analysis in your brief so that you have the ability to construct your opponent’s arguments to be as strong or as weak as you need them. This separates every argument, explains each clearly, and gives the judge the ability to side with the best argument.

 

No Reader Escapes Point Headings – They All Fall By The Sword Of The Pen

Using IRAC effectively in a brief requires well-crafted point headings. Therefore, each IRAC analysis should get its own point heading. Point headings catch a judge’s eyes and burn into his mind the one thought you need him to remember. Most importantly, they set clear parameters for each analysis which also works to road-map a document. This is a great control mechanism for babblers. It also shuts out any red herrings.

Expertly crafted point headings are about two full lines. Anything more is too much for someone’s eyes on a quick read. Compelling point headings are declarative statements – always favorable to your conclusion – of the IRAC analysis that it introduces. It is the one thought that you need the judge to remember. For example, when I draft my briefs if my one thought is “I am right, and you are wrong,” I literally use that as my point heading to drive the focus of that IRAC analysis. Once the analysis is complete I rewrite the point heading so that it pulls the essential points from the analysis.

Strategically, if the judge does not have the time to read your brief then he can scan the point headings for an expert summation of your position (always first) and then your opponent’s (limping along in second). If he did read your brief but is caught among the myriad of cases that morning, then when you are before him he has the ability to scan your brief for the point headings that jog his memory of each sections’ content.

 

Documents Need Curvy Paragraphs, Bolded Sentences, And Spicy Indentations

Once the parameters of each IRAC analysis are set off by point headings the visual beauty of the section is easier to manipulate since the hard work is largely conquered. Therefore, the face of the paper, the position of paragraphs, bolded sentences, and even a hyphen work like chili peppers on black and white.

The first step to visual beauty is to use the white spaces effectively. For example, if the rule in your IRAC analysis is unfavorable to you use a block-quote of it so that the reader naturally does not want to read it. It is aesthetically overwhelming. The block quote uses the white spaces to guide the reader gently to the next paragraph. That paragraph should begin with a quote explaining the rule in the way you want it interpreted. Personally, I love annoyed appellate justices for these moments. It seeps so much love into what is an otherwise boring read.

The second step to visual beauty is well-used punctuation marks. For a rule-oriented profession I am amazed at how many lawyers do not know the rules of grammar. The inexpert hand is obvious when a comma lurks in the middle of a sentence to signal a breath the writer took when he wrote it. Commas have specific uses. A breath in the sentence is not one of them. But the real bombs setting off disaster are semi-colons and colons. These artifacts seem to be as unknown as law libraries. These two combined have fewer uses than commas – presumably making them easier to understand – but seem to be overwhelming more misused.

Simple sentences create simple beauty. Punctuation marks, much like peppers, heat up important points that the judge’s eyes must see and remember. Your sentences and the meaning contained in each become more effective when you know the tools to control the sentence. This, in turn, highlights the punch from each point heading and the author’s credibility and command of the law.

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Christine Kieta
Christine Kieta
Christine’s practice focuses in several areas. Her background draws on a variety of fields such as outside counsel services, civil and commercial litigation, and criminal defense among others. This gives her the ability to represent clients with unusual circumstances. Some of her special areas of practice include representing and building not-for-profit organizations, bankruptcy, commercial bankruptcy litigation, and other areas of civil litigation and criminal defense. Christine also has a unique background working on executive teams in both a legal and non-legal capacity.

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