The Briefs on the Merits - Bna

Ch. 13.11(d) <strong>The</strong> <strong>Briefs</strong> on the Merits 717
contract, which perhaps must be written in legal jargon. It is an exercise in
persuasion, written for Justices who may have time only to read it hastily, not
to study it carefully. Good brief writing is not essentially different from good
writing in other contexts, and all of the usual rules apply. Writers should
attempt to keep sentences short, to avoid excessive use of the passive voice,
to use active verbs frequently, and to break up long paragraphs. Textual footnotes
and long block quotations should be avoided where possible and kept
to a minimum. <strong>The</strong> brief should flow along simply, clearly and logically so
that the reader cannot fail to understand each thought. Cases are won by
convincing the Court that the argument is sound, not by impressing the Court
with the brilliance of counsel. 19 This is not to say, however, that there is no
room for style in briefs. Good writing with a personal style and an occasional
metaphor will hold the reader’s interest. 20
(d) Selection and Arrangement of Points
Learned judges and experienced appellate advocates have recommended
both that an argument should begin with its strongest point and also that one
should immediately get to the heart of the case. 21 <strong>The</strong>se may not be the same.
If a party has to win all of a number of points to prevail, his opponent’s strongest
point—and his weakest—may be the heart of the case. Sometimes the
Court will expect a jurisdictional question to be discussed first. See Rule 24.1(e).
Thus, the most effective arrangement will depend on the circumstances of
the particular case.
<strong>The</strong> 1980 limitation on the length of briefs confronted Supreme Court
brief writers with a problem long faced by writers in most other courts. Counsel
may not have space in 15,000 words to argue all the points they would
like; the weakest points may have to be omitted. Counsel must have the selfconfidence
to select the strongest arguments, although that is often easier to
say than to do. 22
19 See R. STERN, supra note 1, at 329–35, which attempts to summarize the difficulties many lawyers
have with writing good English. For another effort to diagnose the problem, see C. Lutz, Why Can’t
Lawyers Write?, in ABA SECTION OF LITIGATION, THE LITIGATION MANUAL: SPECIAL PROBLEMS AND
APPEALS 200–11 (3d ed. 1999).
20 Judge Wald has encouraged brief writers to “[p]epper your briefs with relevant metaphors and
quotations.” 19 Tips from 19 Years on the Appellate Bench, 1 J. APPELLATE PRAC. & PROC. 7, 21 (1999).
Brief writers should, however, apply the pepper with restraint and avoid overblown rhetoric. Id. Judge
Randolph has noted that “judges are [not] particularly persuaded by rhetorical flourishes. As a matter of
fact, they may be put off by them unless done well, but they’re so rarely done well.” J. Cole, An Interview
with Judge Randolph, LITIGATION 50, 53 (Spring 1999).
21 <strong>The</strong> subject is treated in more detail, with references to what others have written, in R. STERN,
supra note 1, at 287–92.
22 Id. at 287–90. This problem is heightened by the very limited amount of time that the Justices
can devote to reading the briefs. See A. Frey, K. Geller, & S. Gilles, High Court <strong>Briefs</strong>: Saying Lots to
Justices Who Have Little Time, INSIDE LITIG. 29 (Jan. 1987), which estimates that in the average case, the
Justices will spend “[a] half hour to an hour for each side” reading the briefs. Even when there is room
for weaker arguments, a better strategy is to file a shorter brief containing only the strongest points. As
Judge Wald put it: “Your main points have to stick with us on first contact—the shorter and punchier
the brief the better.” 19 Tips from 19 Years on the Appellate Bench, 1 J. APPELLATE PRAC. & PROC. 7, 10
(1999). Judge Bright has similarly advised that “[t]he need to concentrate on a very few claims is partly
a matter of directing the Court’s attention, during the increasingly limited time available for the consideration
of the typical case, to the truly crucial issues. But it is also partly a matter of not obscuring the
crucial issues by concealing them amid a thicket of minor or subsidiary claims.” Appellate Briefwriting:
Some “Golden” Rules, 17 CREIGHTON L. REV. 1069, 1071 (1984).