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.
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.
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.