Briefwriting tips

Silly briefwriting conventions: Overuse of parenthetical shorthand names

Some briefwriting conventions are downright silly. One of the silliest is the compulsion to parenthetically define shorthand names for all persons and companies mentioned in a brief. For example, when the only Flintstone mentioned in a brief is Fred, you’ll see the first reference to him as “Fred Flintstone (‘Flintstone’).” Similarly, you’ll see “State Farm Mutual Automobile Insurance Company (‘State Farm’)” even when it’s the only State Farm company mentioned in the brief.

Where did this silly briefwriting convention come from? It seems to have come from the world of contract drafting. Contracts require defined terms, including definitions of the parties. Contract drafters often find it useful to create a defined shortened form of a party’s name. An easy way to do this is to put the defined term in quotation marks and parentheses after the party’s name. See Kenneth A. Adams, A Manual of Style for Contract Drafting § 1.62 (2d ed. 2008). People see this in contracts, conclude that it’s the “legal” way to write, and transfer the custom to briefwriting.

A brief is not a contract. In a brief, you don’t need to create defined shortened names for everyone when there’s no risk of reader confusion. If Fred Flintstone is the only Flintstone mentioned in the brief, refer to him by his full name the first time he appears—without the parenthetical “(‘Flintstone’)”—and after that, just refer to him as “Flintstone.” Everyone will know you’re talking about Fred. No one will wonder whether you’re talking about Wilma.

The same goes for companies. The exception is when you have, say, two State Farm companies mentioned in the same brief. In that instance, you may need to define shorthand names to avoid confusion:

  • State Farm Mutual Automobile Insurance Company (“State Farm Auto”)
  • State Farm Fire and Casualty Insurance Company (“State Farm Fire”)

Don’t take my word for it. Listen to what Bryan Garner and the late Justice Scalia said about this:

Give the reader credit for having a brain—and show that you have one, too. Don’t leave your common sense at the door. If your brief repeatedly refers to the Secretary of Transportation and mentions no other Secretary, it is silly to specify parenthetically, the first time you mention the Secretary of Transportation, “(hereinafter ‘the Secretary’).” No one will think that your later references to “the Secretary” denote the Secretary of Defense, or perhaps your own secretary.

Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges § 44, at 113 (2008). See also Bryan A. Garner, The Elements of Legal Style §§ 4.5 and 7.4 (2d ed. 2002).


Dance with the issue that brung you.

Here’s a tip for U.S. Supreme Court practice that should be obvious: if the Court grants certiorari, brief the issue raised in your cert. petition. If you brief a different issue, your writ will be dismissed as improvidently granted. That’s what happened yesterday in Visa, Inc. v. Osborn, c/w Visa, Inc. v. Soumbos:

These cases were granted to resolve “[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . .” Pet. for Cert. in No. 15-961, p. i, and No. 15-962, p. i. After “[h]aving persuaded us to grant certiorari” on this issue, however, petitioners “chose to rely on a different argument” in their merits briefing. City and County of San Francisco v. Sheehan, 575 U. S. __, __ (2015) (slip op., at 7). The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.

The same rule applies in the Louisiana Supreme CourtSee Boudreaux v. State, DOTD, 2001-1329 (La. 2/26/02), 815 So. 2d 7.


Writing for the ignorant reader

John Balestriere has an interesting post at Above the Law on writing persuasively for the reader who knows far less about your case than you do—that is, every judge, judicial law clerk, and court staff attorney who reads your brief. He reminds us that those readers have many more cases on their plates than we have on ours, and that the time they can spend reading a brief is measured in minutes, not hours.

 For more on this topic, read this October 2014 post on the curse of knowledge.


In briefs, emotional language loses.

Some political scientists recently published a study on the use of emotional language in briefs filed in the U.S. Supreme Court. After controlling for a variety of factors, they concluded that overtly emotional language correlates to losing the case. Here’s an excerpt from the abstract:

We argue emotional language conveys a lack of credibility to justices and thereby diminishes the party’s likelihood of garnering justices’ votes. The data concur.... [W]e find that parties who employ les emotional language in their briefs aree more likely to win a justice’s vote, a result that holds even after controlling for other features correlated with success, such as case quality. These findings suggest advocates seeking to influence judges can enhance their credibility and attract justice’s votes by employing measured, objective language.

Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, and Eve M. Ringsmuth, The Role of Emotional Language in Briefs Before the U.S. Supreme Court (December 15, 2015). To read the abstract and to download the study supporting the authors’ conclusions, following one of these links at SSRN: http://ssrn.com/abstract=2703875 or http://dx.doi.org/10.2139/ssrn.2703875.


How not to comply with word-limit rules

Most appellate courts have rules limiting the number of pages or words in a brief. When a brief is a bit too long, lawyer-editors have a number of techniques for making the brief fit the applicable limit. Some are good. Others are not so good.

An example of the latter comes from the Federal Circuit’s decision last spring in Pi-Net International, Inc. v. JPMorgan Chase & Co., No. 2014-1495 (Fed. Cir. Apr. 20, 2015), cert. denied sub nom. Arunachalam v. JPMorgan Chase & Co., No. 15-691, — U.S. — (Jan. 11, 2015)  (PDF copy here). There, the appellants decided to squeeze their brief under the 14,000-word limit by removing the spaces between words. For example, instead of providing this citation:

Thorner v. Sony Computer Entm’t Am., LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) [14 words]

they provided this one instead:

Thorner.v.SonyComputerEntm'tAm.LLC,669F.3d1362,1365(Fed.Cir.2012) [1 word].

The trick didn’t work. The Federal Circuit struck their brief and dismissed their appeal. And last Monday, the Supreme Court denied certiorari.

For legitimate methods to squeeze a brief under a page or word limit, read this post by Mark Herrmann.


Update on yesterday’s how-not-to-write post: The lawyer’s response to the show-cause order

Fair is fair. Yesterday I criticized a petition for certiorari, filed in the U.S. Supreme Court, as being incomprehensible. It’s only fair to present the filing lawyer’s side of the story. So here is his response to the Court’s show-cause order, with some redactions (presumably to protect intellectual property). Hat tip to Lyle Denniston at the SCOTUS Blog for this.

Long story short: the client “insisted on articulating his basic argument ... in his own words ... right down to the client’s favored locutions and acronyms.” The resulting work product is “written in an unorthodox style and can be difficult to follow at times ....”  Yep.

What do you think? Is this sanctionable conduct? Or is having the petition denied by the Court or rejected by the clerk punishment enough?

__________

Update (23 Mar. 2015): A happy ending for the lawyer who filed this petition: the Supreme Court has discharged its show-cause order against him, with a reminder that lawyers “are responsible—as Officers of the Court—for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated ‘in plain terms,’ and may not delegate that responsibility to the client.”