Theory of briefwriting: persuasion

This is the first of what I hope will be a series of blog posts on my theory of briefwriting. It’s fine to offer tips for writing better briefs. I hope to go a little beyond that by laying a foundation for any tip that I might offer: the “why” behind every “what to do.”

The best place to start is the purpose of an appellate brief. That sole purpose is persuasion, specifically to persuade the judges to reverse, vacate, modify, or affirm the judgment being appealed. Every tip for briefwriting should serve the purpose of making the brief more persuasive.

Supporting authority:

Briefs are written for one audience and one audience only: judges and their law clerks.... You write to persuade a court, not to impress a client. You write to persuade a court to your point of view; at a minimum, you write to convince the court to grant oral argument in your case. The key word is “persuasion.” If a brief does not persuade, it fails.... As you write prop a sign, literally or figuratively, on your desk that asks, “Will this brief persuade the reader?”

Persuasion is the only test that counts. Literary style, massive displays of scholarship, citations that thunder from the ages, and catchy phrases are uniformly pointless if the writing does not persuade.

Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert, Winning on Appeal 15 § 2.1 (3rd ed. 2017).

The corollary: Every choice you make as a briefwriter should be made with the purpose of making the brief more persuasive. This goes for everything from issue selection and argument formulation to seemingly mundane things like typeface and document design. If you make a choice for any other reason, then at best, you’re missing an opportunity to make your brief more persuasive. At worst, you’re choice may even defeat the purpose of persuasion.

La. 2nd Circuit closed through Friday

Today the Louisiana Second Circuit issued an order extending its hurricane-related closure through the rest of this week. The court is now scheduled to reopen on Monday, August 31. To download a copy of today’s order, follow this link.

A minute ago, I checked the Louisiana Third Circuit’s web site. Nothing new to report, so according to the court’s August 24 order, the court is still scheduled to reopen on August 31. Our thoughts and prayers are with the Third Circuit’s personnel and everyone else in Laura’s path.

More La. court closures

I’ve stumbled across a few more orders closing Louisiana courts because of Marco and Laura:

  • The Louisiana Supreme Court closed yesterday and will remain closed through tomorrow, August 26. To download that order, follow this link.
  • The Louisiana First Circuit closed yesterday and will remain closed through Thursday, August 27. To download that order, follow this link.
  • The Louisiana Fifth Circuit closed yesterday and will remain closed through tomorrow, August 26. The building will reopen on Thursday morning, August 27, “unless conditions warrant otherwise.” To download that order, follow this link.

CLE on the science and rhetoric of persuasive writing

This one-hour CLE session looks promising: Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word. The presented is Judge Robert E. Bacharach of the U.S. Tenth Circuit. It’s sponsored by the ABA and the ABA Council of Appellate Lawyers. The program “will draw on the field of psycholinguistics, using numerous examples from famous oratory and passages from briefs and opinions by well-known judges and advocates.” The registration fee is $99 for non-member of the ABA, $59 for ABA members and $39 for members of the ABA Council of Appellate Lawyers.

While you’re at it, if you’re an appellate lawyer and ABA member, you might consider joining the Council of Appellate Lawyers. I’ve benefited from my membership in the CAL; so will you.

LSBA appellate webinar on October 2

On October 2, 2020, the LSBA will hold a two-hour CLE on appellate practice. Thomas Flanagan will interview three judges: Judge Sylvia Cooks (La. Third Circuit), Judge Kyle Duncan (U.S. Fifth Circuit), and Justice William Crain (La. Supreme Court). According to the seminar flyer, “The interviews will focus on appellate practice, including the inner workings of the courts and attributes of effective written and oral advocacy.” Follow these links for more information about this webinar: