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The first two commandments of brief writing

Here’s something I’ve wanted to get off my chest for a long time. It springs from the seemingly endless debates lawyers have about matters of style in writing a brief: Citations in text or in footnotes? How many spaces—1 or 2—after the end of a sentence? What font to use? And so on.

We often answer these questions according to what we like or what we think judges like. In my opinion, that’s the wrong approach to answering these questions. Instead, in making these choices, we should ask ourselves one question: Which choice will be most persuasive?

This approach stems from something we all should agree on: that the brief’s most important purpose is to persuade the judges deciding the case. Judge Ruggero Aldisert made this point well in Winning on Appeal:

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....

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.

[Ruggero J. Aldissert et al., Winning on Appeal 15 (3d ed. 2017).]

Because the brief’s most important purpose is to persuade, the most important consideration in every choice we make as brief writers is this: Which choice will make the brief more persuasive? As Bryan Garner has said, “All aspects of a brief—its basic ideas, its tone, its sentence structure, its word choice, its punctuation, its page layout—matter.” The Winning Brief xiii (3d ed. 2014). All aspects matter for persuasiveness.

Let me give you an example: choice of font. My go-to font is Cambria, which I use whenever the rules allow me to choose the font. Why? Not because I think it looks nice (though I do), but because it has high contrast—the letters stand out from the white background better than in other fonts. Studies in cognitive psychology show that high-contrast text is (no surprise) easier to read, which encourages readers to use System 1 thinking, which makes them more receptive to whatever message the writing conveys. So I choose Cambria not because I find it aesthetically pleasing, but because I have reason to think that it will enhance the persuasiveness of my brief.

How do you know what’s more persuasive? Learning that is a career-long pursuit. I recommend the books listed on the right side of this blog’s home page. Bryan Garner’s books are a good place to start. For an intro to cognitive psychology, check out Daniel Kahneman’s Thinking, Fast and Slow. For lessons in classical rhetoric, check out Classical Rhetoric for the Modern Student by Edward Corbett and Robert Connors and Legal Persuasion by Linda Berger and Kathryn Stanchi. For advice on applying this knowledge to brief writing, I recommend Michael Smith’s Advanced Legal Writing.

So here are the first two commandments of brief writing:

  1. Persuasiveness matters more than anything else.
  2. The most important consideration for every choice you make as a brief writer is which choice will be most persuasive.

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