THE LEGAL WRITING
CORNER
Writing to Win : Woo the court with a persuasive brief
By Jennifer Cook , Denitsa Mavrova Heinrich , and Jenny Samarzja
Legal writing experts often refer to brief writing as an art and a science . A winning brief combines both the art of prose and persuasion and the science of structural organization and editorial process . This refresher on brief writing offers three persuasive techniques to improve your next brief : ( 1 ) Tell a Compelling Story with the Statement of Facts ; ( 2 ) Make Powerful Arguments with Precisely Chosen Points ; and ( 3 ) Pave a Persuasive Path with Proofreading and Editing .
Tell a Compelling Story with the Statement of Facts
An appellate judge revealed in 80 % of cases before the court , the judge reached a firm inclination about the probable outcome of the case from the appellate brief alone . 1 And notably , that judge ’ s initial inclination did not change after oral arguments . 2 Because your brief will likely be the most important impression a court gets of the merits of a case , the fact section must provide the legally significant facts – without characterization or argumentation – in a compelling light for the client . “ When you approach the facts section , view yourself as a careful story-teller , not just a neutral historian , and certainly not a fiction writer either .” 3
Consider these examples :
( 1 ) On January 5 , 2005 , ABC Co . sent a written purchase order to DEF Co . for 100 widgets at an advertised price of $ 1 per widget .
( 2 ) On January 5 , 2005 , ABC Co ., acting in the utmost good faith , sent a conditional purchase order to DEF Co . that required DEF to send ABC precisely 100 widgets according to the strict terms and conditions of ABC ’ s purchase order , or not at all .
( 3 ) ABC Co . needed 100 more widgets to satisfy customer demand . At the time , the best price on the market was $ 1 per widget from DEF Co . So , on January 5 , 2005 , ABC sent DEF a written purchase order . 4
The first example provides factual assertions that are neutral and lackluster . The second offers overly argumentative ones . The third example is the most compelling one because it provides a factual assertion that tells a compelling story without overstating the facts .
Make Powerful Arguments with Precisely Chosen Points
Judge Alex Kozinski wrote when attorneys “ bury [ their ] winning argument among nine or ten losers ” a loss on appeal is much more likely than not . 5 In other words , pick two to three of your most winning arguments and avoid throwing “ everything but the kitchen sink ” into your argument . And when writing your arguments , refrain from making them a litany of rebuttals to the opposing party ’ s arguments . A powerful argument leads with its strongest points , incorporating rebuttal into the natural flow of the argument . For example , write this : “ The facts in the present case are distinguishable from Carpenter v . U . S . ... ” not this : “ Opposing counsel argues the facts in Carpenter v . U . S . are similar . . .. ” A brief makes precise and powerful points when it explains why an argument is right instead of why the other party is wrong .
Pave a Persuasive Path with Proofreading & Editing
Proofreading and editing are perhaps the least recognized brief writing processes in terms of importance , but they are arguably two of the most critical components of writing a persuasive brief . “ A well-edited brief [ cannot ] change the law or facts of your case , but it can spell the difference between presenting the Court with a mess to clean up [ or ] presenting it with a clear and logical path to a decision in your favor .” 6 “ In short , proofreading [ and editing ] makes your brief more readable , and a [ more ] readable brief is a [ more ] persuasive brief .” 7
Proofreading and editing are not one in the same . Proofreading is the process where writers search for and correct any spelling , grammar , and formatting mistakes . Editing requires reviewing a brief ’ s content paragraph-by-paragraph , and sentence-bysentence , to eliminate imprecise language , weak arguments , or illogical flow or organization .
Ideally , you should set aside the brief for some time ( at least 24 hours ) at the end of the initial drafting process . After resting the brief , dedicate at least a day or two to editing and proofreading . A well-proofed and edited brief is free of mistakes that can distract a judge from the merits of an argument and paves a persuasive path toward a brief that woos and wins the court .
1 . Brian L . Porto , The Art of Appellate Brief Writing , VT . BAR JOURNAL , Summer 2003 , 29-SUM VT . B . J . 30 . 2 . Id . 3 . Judge Stephen J . Dwyer , Leonard J . Feldman , and Ryan P . McBride , How to Write , Edit , and Review Persuasive Briefs : Seven Guidelines from One Judge and Two Lawyers , 31 SEATTLE U . L . REV . 417 , 420 . 4 . Id . at 418-20 . 5 . Id . at 422 . 6 . Stuart Segrest and Matthew Conchenour , Appellate Brief Writing : A Primer , MONT . LAWYER , Aug . 2020 , 45-AUG MTLAW 12 , 15-16 . 7 . Id .
Jennifer Cook , Denitsa Mavrova Heinrich , and Jenny Samarzja are faculty members in the Lawyering Skills Program at the University of North Dakota School of Law .
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