The Winning Brief

This article is reprinted with permission from the March 11, 2005 edition of the New York Law Journal. © 2003 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited.  

3/11/2005 N.Y.L.J. 2, (col. 3)

New York Law Journal
Volume 231
Copyright 2005 ALM Properties, Inc. All rights reserved

Friday, March 11, 2005

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LAWYER'S BOOKSHELF

The Winning Brief (Second Edition)

100 Tips for Persuasive Briefing in Trial And Appellate Courts

By Bryan Garner

Reviewed by Philip R. Schatz

Of all the skills in a litigator's kit, writing briefs (either formal briefs or argumentative letters) is the most-commonly used, the most likely to make a difference in the outcome of a case, and the most neglected. For every book on legal writing, there seems to be a dozen on discovery or trial practice. Most lawyers had limited training in law school and have had zero since. As a result, many of us have petrified into bad habits and rote forms that are not only unpersuasive, but actually undermine the force and credibility of the arguments we make -- and we don't even know it.

The profession badly needs an accessible primer for advice on and solutions to the most common problems. Bryan Garner's "The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts" is just such a text. All lawyers who rely upon written argument in their practices should have a copy of the book close at hand.
 

Mr. Garner is uniquely qualified to write the book. Together with his wife Pan, he has trained over 40,000 lawyers to write more persuasively and more credibly through his company LawProse (www.lawprose.org). He was drafting consultant to the U.S. Judicial Conference's Standing Committee on Rules of Practice and Procedure and to the courts of California, Texas and Delaware. Since 1987 he has written more than a dozen books dedicated to better writing, including the best ones -- "A Dictionary of Modern Legal Usage" -- (modeled on the cranky, idiosyncratic, dated, and decidedly "English Modern English Usage" by H.W. Fowler, a work as esteemed as it is little-read); "The Elements of Legal Style" (modeled on the classic "The Elements of Style by William Strunk," as augmented by the peerless E.B. White); and "The Redbook: A Manual of Legal Style" (the equivalent of "The Chicago Manual of Style," to which he also contributed). He is editor-in-chief of the venerable "Black's Law Dictionary" and has rightly been called the preeminent American expert on good legal writing.
 

'The Winning Brief" has no non-legal equivalent or predecessor, but arises instead from Mr. Garner's extensive teaching and consulting experience. As a result, the tips have been thoroughly vetted by both judges and lawyers. The 100 tips, culled from the larger body of common errors, are organized generally into 10 topic areas covering all aspects of brief-preparation, from thinking it through to advanced-editing techniques. Each is supported by excellent "quotable quotes," chosen personally by Garner, from the best legal-writing literature, a thorough explanation of the rationale for the tip, and examples of the tip in action. There is no room in this review to do more than touch upon a few of the tips.
Writer's block is a common problem for lawyers. Assembling and organizing the law and facts to support an intended conclusion can be so daunting as to induce paralytic procrastination. Relying on impending deadlines or stimulants for inspiration leaves no time for editing and is unhealthy. There are better solutions.

Mr. Garner provides seven orderly and sensible tips for thinking through the issues and turning out a draft. They include breaking the project up into sub-projects; recognizing the need for several different brief-writing personae; and taking time between draft and editing. One interesting tip, number five, involves non-linear outlining, a remarkably simple and powerful technique that has to be tried to be appreciated.
 

In many ways, persuasive issue-writing is the most important part of every argument. The right answer depends upon asking the right question, and doing so in a readily understandable and concrete way. Here, too, Mr. Garner provides valuable insights. His "deep issue" analysis and emphasis on syllogisms are well worth internalizing, as are his simple suggestions for maximum clarity.
All great writers are great editors, but how many of us make the effort to rewrite once we have written? Who has the time, the budget, and the willingness to tear apart and reassemble a brief that was so difficult to construct in the first place? Mr. Garner shows good editing habits that no lawyer can afford to skip. Replace labels with real names. Change passive to active. Eliminate unnecessary detail, invective, buried verbs, passive constructions, throat clearing, prepositions, unnecessary adjectives and adverbs, legalese, and every "clearly" or "obviously." Editing requires discipline and ego-suspension, but is always worth the extra effort.
 

At the highest level, Mr. Garner shows the reader how to enhance credibility by paying closer attention to forms of expression. These tips take briefs to the highest level of persuasiveness. Show, don't tell. Structure arguments as dialectic, and recognize and deal fairly with counter-arguments. Use quotations to support assertions, not to state them. Never distort. Never exaggerate. Never attack personalities, especially when provoked. Come in under the page-limit. Don't rely on being legally right; show why your objective is moral and reasonable. Every part of the brief should advance the argument. Dispense with boilerplate everywhere especially the conclusion.
 

It may be true that great writers can succeed in violation of the rules; but even their efforts would be improved by following Mr. Garner's tips. In any event, most lawyers aren't great writers. I can offer my own cautionary fable. I submitted a brief several weeks ago that I was proud of, that I had labored over, and that I was confident was as clear and convincing as it could be. As an experiment, I applied Mr. Garner's tips to that brief. To my surprise, the comparison revealed numerous violations of his tips. Moreover, I could plainly see that the brief would have been infinitely better if I had followed them. As ego-deflating as that experience might be, I take some comfort in knowing that I am joined by the great mass of lawyers who have unconsciously fallen into bad habits of composition and form. There is no reason for despair, in any case, thanks to Bryan Garner's "The Winning Brief."

Philip R. Schatz is a member of Wrobel & Schatz.
3/11/2005 NYLJ 2, (col. 3)