Briefwriting tips

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.”

Huh? (Another lesson in how not to write a brief.)

Here is another lesson in how not to write. A couple of months ago, the U.S. Supreme Court not only denied a petition for certiorari; the Court ordered the lawyer who filed the petition to show cause “why he should not be sanctioned for his conduct as a member of the Bar.” This story has been covered by the WSJ Blog and by Josh Blackman’s blog.

So what got the lawyer in trouble? The Court hasn’t said. So I did a little research and located a copy of the petition. And Lord!, I don’t have a clue what he’s talking about. Here, for example, are the questions presented:

“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112,

  • require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/ Bilski/ Mayo/ Myriad/ Biosig/ Alice line of unanimous precedents framework, or does the US Constitution for such decisions
  • entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”

I thought maybe he had violated a rule requiring cert petitions to be written in English. But the good folks at the WSJ Blog think the problem may lie in footnote 30 (page 37), where the author credits his client “for significant contributions to this Petition.” That footnote appears to violate the Court’s guidelines, which dictate that

names of non-lawyers such as research assistants, law students, and advisors may not appear on the cover under any circumstances; nor are they to be credited with having contributed to the preparation of the petition either in the text, in a footnote, or at the conclusion of the petition.

To me, this petition offers a more important lesson in how not to write a brief. In legal writing, the prime directive is clarity. You must write so that the reader can understand what you’re saying. If you fail to do that, everything else you do is wasted effort.

Tips on writing the summary of the argument

If you’re writing a brief for a Louisiana court of appeal or the U.S. Fifth Circuit, you must include a summary of the argument. The same goes for a writ application to the Louisiana Supreme Court. But the rules offer little guidance on how to write the summary except to make it “succinct,” “clear,” and “accurate,” and to avoid merely repeating the argument’s point headings.

If you’re looking for tips on how to write the summary of the argument, you may be interested in Judith Fischer’s article on that topic, Summing It Up with Panache: Framing a Brief’s Summary of the Argument, which you can download on SSRN. In her article, Fischer examines the competing summaries of arguments from the briefs in 20 U.S. Supreme Court cases, analyzing the techniques used by the briefwriters to grab the Court’s attention.

Practical tip for assembling a writ application

Today I started working on an application to the court of appeal for a supervisory writ, and was reminded of my # 1 tip for this task: the first thing you do—before you write a word—is assemble the attachments. Uniform Rule 4-5 lists the attachments that must be included. I like to put them all together and give them provisional page numbers before I start writing the application itself, starting with A1, A2, etc. If your attachments are in PDF (if they’re not, they should be), putting them together and page-numbering them is a snap with Adobe Acrobat or other PDF-handling software.

Assembling the appendix on the front end has at least two advantages. First, when you draft the writ application, you can include pinpoint citations to items in the appendix. Second, you find out immediately if you’re missing something that you need (such as the hearing transcript).

There is one little hitch to my system: Uniform Rule 4-5(B) requires all pages of the application, including the application itself and all attachments, to be consecutively numbered. And if you don’t know how long the application itself will be until you write it, you don’t know until the end of the process the number of the first page of the attachments. But this problem is easy to solve. Once the application is in almost-final form, you know how long it will be. If it’s 25 pages, you know that the number of the first page of attachments will be 26. So when I’m finalizing, say, a 25-page application, I just add 25 to all my “An” citations to the attachments and remove the “A”. A1 becomes 26, A2 becomes 27, etc. Is this time-consuming? A bit. But not nearly as time-consuming as trying to fill in totally blank citations to the attachments.

Which leads to another tip: when, in writing a writ application, you cite one of the attachments, cite it by its consecutive-page number. If it’s a multi-volume writ application, cite by volume and page number. Example: “See writ app. vol. 2 p. 301.” Your job as the writer is to make it as easy as possible for the reader to locate what you’re citing. So give the reader the information needed to instantly locate whatever it is you’re citing.

Don’t boilerplate. Write.

I am no expert in drafting contracts; that expert is Ken Adams. But this post of his resonates with me as a briefwriter. I don’t like boilerplate anything in persuasive writing. Why? Because nobody reads boilerplate. If you have not put any thought into the sentence, if you have not figured out how to make it either informative or persuasive (or better yet, both), then you are wasting ink, paper, pixels, etc.

The only formulaic things in your brief should be things like certificates of service and of compliance with the rules, and the verification in a writ application. Even those should be written in plain English; and you should check the rules to see whether they’re necessary. Everything else must either inform or persuade or both. This rule includes things that many lawyers boilerplate, such as the jurisdictional statement and the statement regarding oral argument. It definitely includes the standard of review. This means that nothing, NOTHING in your brief should be a cut-and-paste job.

The curse of knowledge: the root of incomprehensible writing

Bryan Garner tells participants in his seminars that good writing makes the reader feel smart, while bad writing makes the reader feel stupid. What is the root of this kind of bad writing? Mark Herrmann has an idea about that, drawn from cognitive scientistSteven Pinker: we think that our readers already know what we are trying to tell them. Pinker calls this phenomenon “the curse of knowledge.”

So what is the cure for this affliction? Herrmann recommends empathy for the reader. “Put yourself in the reader’s state of ignorance,¨ he counsels, “and write for that audience.” Pinker suggests testing your draft one people who don’t already know what you’re trying to tell them:

A better way to exorcise the curse of knowledge is to close the loop, as the engineers say, and get a feedback signal from the world of readers—that is, show a draft to some people who are similar to your intended audience and find out whether they can follow it. Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.

Garner has a similar recommendation in The Winning Brief, at least for cases where the amount at stake is worth the expense: Convene a focus group of lawyers unfamiliar with the case to play the part of appellate judges by reading and reacting to your draft brief. This exercise has many benefits. One of them is to tell you whether the curse of knowledge has infected your brief.

(Cross-posted on The (New) Legal Writer.)

Don’t let your brief be DOA.

Here is a briefwriting tip courtesy of Senior Judge Laurence Silberman of the D.C. Circuit: avoid overuse of uncommon initialisms.

Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing. [Ouch!]

The use of obscure acronyms, sometimes those made up for a particular case, is an aggravating development of the last twenty years. Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means. Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.

Delaware Riverkeeper Network v. Fed. Energy Regulatory Commn., No. 13-1015 (D.C. Cir. June 6, 2014) (Silberman, J., concurring).

Judge Silberman is not the first authority to advise against overuse of initialisms. Garner’s Dictionary of Legal Usage includes a persuasive essay against what Bryan Garner dubs “Initialese.” It opens with a quotation from this footnote by Justice Rehnquist:

The term “alphabet soup” gained currency in the early days of the New Deal as a description of the proliferation of new agencies such as WPA and PWA. The terminology required to describe the present controversy suggests that the “alphabet soup’ of the New Deal era was, by comparison, a clear broth.”

Chrysler Corp. v. Brown, 441 U.S. 281, 286–87 n. 4 (1979). But my favorite comment on this all-too-common writing tick comes from Chief Judge Alex Kozinski (9th Cir.), advising lawyer on how to lose an appeal:

[D]on’t forget the acronyms in bureaucratese. In a recent brief I ran across this little gem:

LBE’s complaint more specifically alleges that NB failed to make an appropriate determination of RTP and TIP conformity to SIP.

Even if there was a winning argument buried in the midst of that gobbledygoop, it was DOA.

Alex Kozinski, The Wrong Stuff, 1992 B.Y.U. L. Rev. 325, 328.

So what’s a briefwriter to do? Feel free to use commonly known initials as shorthand names, such as IRS, FBI, or (in Louisiana) LSU. Otherwise, use descriptive names. If, say, the Louisiana Public Service Commission is the only commission referred to in your brief, refer to it by its full name the first time you refer to it. In subsequent references, call it “the Commission,” not “the LPSC.” When I write a brief for the Louisiana State Board of Medical Examiners and it is the only licensing board referred to in the brief, its shorthand name is “the Board,” not “the LSBME.” If the Department of Health and Hospitals shows up more than once in your brief , call it “the Department,” not “DHH.”