I. Hammer Your Opponent—An Introduction
On the cover of this book is a photo of the scales of justice. One scale holds a gun, the other a small wood gavel. The gun has the decided advantage. You, reader, are the gun. Or, more precisely, your writing is the gun. Or, your writing should aspire to be the gun. Your writing is—at the risk of continuing this tortured metaphor—your first shot, your firepower, your most useful tool.
Not every great lawyer is a good writer. The opposite is not true, either. I don’t know how comfortable I’d be with James Joyce representing me in that breach of fiduciary duty action I’m facing. Or Robert Frost on that easement dispute. Or Thomas Pynchon on that lewd and lascivious behavior charge… The goal in legal drafting is not, as Joyce famously remarked to a friend, to shed “a little obscurity on the matter”—although there are exceptions. Nor is it to add great clarity. It is, rather, a Darwinian pursuit: to win. How do you win? By hammering the other side.
We are back to the gun. The first shot over the bow in a lawsuit is a complaint, or a claim in arbitration, or a demand letter. The next meaningful shot is a response—often a motion to dismiss or, if you’re in arbitration, a detailed “speaking” answer. The case progresses. There are discovery disputes and hearings, mediation, motions for summary judgment, a trial, a judgment, an appeal. At every step, you are preceded by your written submission. In some cases—in many federal courts, some appellate courts, and certain arbitrations—your written submission is the only thing a court or arbitrator will see. The brief sets the tone, frames the issues, makes the arguments and, in the best case scenario, wins the case. A skillful writer will exploit a weaker one, gain the upper hand at the outset, and generate momentum for the client.
This book is intended to improve writing skills and, by extension, advocacy and, consequently, a lawyer’s results. It is not a book for legal drafting in the sense of contracts, settlement agreements, or wills and trusts—technically challenging fields in there own right. It is for the zealous advocate, battling in the trenches of most civilized bloodsport in the world—civil litigation. Do not go out with a cap gun. Go with a .44 magnum, a sawed-off shot-gun, a howitzer—or, in honor of the trio of Russians quoted above (Warren Zevon, b. Zivotovsk), an AK-47. Improve the size of your gun with these things I have written down.
II. Flesh and Bones: The Structure Of A Brief
1. One Way
In his long forgotten 1980s golf instructional video, “Golf My Way,” Jack Nicklaus tells us that, while a golfer has thirteen clubs to choose from (excluding the putter), the golfer needs only one swing. How do we receive this news? At first, gleefully—we’re only one swing away from flagging it every time! Then doubtfully—Jack Nicklaus is a liar! And finally, despairingly—I can’t learn the swing. Writing briefs and motions is easier than playing golf, but there are similarities. Like the variety of irons and woods cluttering up a golf bag, there are as many kinds of motions and briefs—motions for summary judgment, motions to dismiss, motions to compel discovery, all manner of appellate and jurisdictional briefs. They each have their own rules, standards, and goals. However, like Jack Nicklaus said, there is only one formula you need to learn and repeat. It may not help you win six Masters’ titles—though strangely enough it may—but it will help you write an effective argument.
1. Begin With An Introduction
2. State The Facts
3. State The Law
4. Apply The Facts To The Law
5. State A Conclusion
There is nothing revolutionary to this (in law school they teach it as the keyhole method), nor need there be. Jack Nicklaus’s point was that, in golf, a predictable, repeatable, compact swing is preferable to one with many variations and hitches. Wacky swings belong to that sorry lot Jack lumps together under the derisive label, “The Average Golfer.” The difference between average and great is the ability to do one simple thing to perfection, over and over again. Why is it that golfers understand this point implicitly? Tiger Woods was once asked what distinguished him from the rest of the players on the PGA Tour, all of whom could hit great shots and most of whom could drive it as far or farther than he. He replied, “Being able to repeat it.” Lee Trevino put it in even simpler terms. He said the difference between an average golfer and a great one is “this much,” and he put his thumb and index fingers close together next to his squinty eye to show a tiny distance. There is nothing unsophisticated or demeaning with following a formula. The very best do it. Lawyers should do it, too.
2. The Introduction
A good introduction accomplishes three things: It introduces your best argument (or arguments), it seizes an advantage against your opponent, and it states the relief you seek. A bad introduction muddies the waters, drags on forever, and either never makes it point or makes so many points your reader is lost in the swamp. See infra, Don’t … Put Everything In The World Up Top.
The first goal, to state your best argument, seems intuitive enough, but there are hidden complexities. You might not know what your best argument is. And, attitudes often change over where your arguments rank as briefing develops, counterarguments come to light, and hearings play out. What used to be your best argument is now in the garbage, and out comes a totally new best argument you barely considered before. There’s nothing wrong with noting several arguments in your Introduction, especially where you suspect your best argument has weaknesses, but too many start to crowd the introduction. The simpler you can state your points the better. If you have several strong points, strive to make them concise, and don’t try to cram in the weaker ones.
One solution to the “best argument” problem is to take the big picture approach. The second goal—seize an advantage—employs this technique. Perhaps your best argument isn’t a legal argument at all, but is an embarrassing or uncomfortable jam your opponent is stuck in. Perhaps it’s a prior loss you want to exploit. Maybe it’s the fact that the other side is scheming behind the scenes or is being disingenuous about events playing out in another forum. Some things are off limits—you can’t bring up settlement negotiations, for instance. But calling out your opponent for gamesmanship or underhanded tactics can win the high ground. If it is meaningful, it should come out forcefully in the opening.
The third goal lets the court know immediately what you’re asking it to do. This seems as straightforward as it gets, but sometimes—often in injunction motions, for example—the relief you seek gets endlessly complicated. Letting the court know where you are going with the motion is elementary, but sometimes it is so elementary that it is overlooked, or else not very well thought out. It often is one short sentence—“The court should deny the motion.” If it is more complicated, state it as plainly as possible.
3. The Facts
Your facts should beat like a drum. They should be simple declaratory sentences, free of editorial comments, and without overt argument. That is not to say that your facts section should be argument free. Every part of your brief should point the court toward where you want to go, and the presentation of facts play a big part. The argument in this section is not express but implied from the arrangement, style, and structure of the sentences. Take this example, from an appellate brief challenging an award of restitution:
“At trial, the district court heard testimony of nine former customers. All the customers testified that they understood the substantial risks inherent in options transactions and acknowledged that they signed the required risk disclosure documents prior to opening an account. At least seven of the former customers admitted that they were aware of the significant risks involved in trading options before they opened an account due to previous trading experience or on-line research. The nine testifying customers had all ceased trading by, at the latest, August 2002, two years before the government brought the case. Four customers, including the customer with the biggest alleged loss, El Toro, ceased trading options in 2001. El Toro had no dealings at all with either Defendant, but dealt primarily with a broker who left XYZ within six months of the time XYZ began doing business. El Toro followed this broker to his new firm and continued trading commodities with him.”
This paragraph does not specifically say that the witnesses against Defendants were dubious. It shows they were dubious at every turn: nine people testified; seven admitted to knowing the risks going in; all nine had stopped trading years before the case was brought; and the biggest loser of all, El Toro, traded in the very beginning of the company’s existence, with a broker who was gone in six months, and El Toro felt so victimized by his experience that he naturally kept trading with the guy at the next firm.
Picking and choosing among the facts is an art. You don’t want to leave out obviously negative facts, as that only gives the other side a platform to point out the omission. Nor do you want to dive into overt argument. A well done fact section will suggest all of your arguments naturally and set you up for future success.
4. The Law
State the controlling legal principles, standards, and holdings bearing on your issue. Like the facts section, your statement of the law should signal your argument so that, by the time you get there, your reader can already anticipate the point. Ideally, your facts section should flow organically from your facts section and into your argument section. It is the bridge where your readers, having emerged from the plains of your facts, see immediately where they are heading. It should not be a dense tangle of legal principles thrown together on the page.
Lead off with your best case or authority. It’s important to know how to distinguish good authority from bad. Bad, in this sense, does not mean negative authority—a case that actually goes against you. Bad means, not persuasive. Think of it like a poker hand. A royal flush is a reported controlling case hot off the presses (very recent) dealing with your exact facts. Or, it could be an unambiguous statute that wholly supports you. A seven high (the lowest possible hand in five card stud) is an Ante-Bellum, pre-Fourteenth Amendment unreported order from the District of Timbuktu (aka the District of BFE—“E” is for Egypt) with a lot of distinguishable facts and whose holding contradicts a mountain of persuasive cases.
On this continuum there is the sub-category of controlling authority and persuasive authority. Controlling, or binding, authority means a case, statute, or rule that is binding on the court you are in. If you are in a federal district court in New York and are dealing with a question of federal law, an opinion from the Second Circuit Court of Appeals is controlling. Controlling authority, like a flush or a straight in poker, trumps almost everything. So, even if your case is a lone wolf, standing up against a mountain of persuasive cases, you will win because the court must follow it (at least in theory, and assuming it can’t be distinguished). Persuasive authority means a case from outside your specific venue. If you are in the Southern District of New York, a persuasive case might come from the Seventh Circuit (i.e. Chicago), or it could come from a fellow district court in New Jersey. Not all persuasive authority is made the same. Some jurisdictions, particularly in federal court, are given presumptive weight because it is presumed they are experts in the field. The Seventh Circuit, from Chicago, is the leading court on commodities law, while the Second Circuit, in New York, is the leading court on securities law and shipping disputes. Courts in Delaware are leaders in issues of corporate law, since a huge number of businesses are incorporated in Delaware. The converse is also true. A shipping case decided in the District of Nebraska is, on its face, not going to have much persuasive value, since Nebraska is not exactly an international shipping hub. There are also ingrained prejudices. In Florida, opinions from the Ninth Circuit (i.e., California) are looked down upon because of the perception, probably unearned, that its opinions are out of step with the rest of the Circuits.
Treatises are always persuasive authority and are useful if you can’t find a good case to support a well accepted point you know is true. At the top are the Restatements of Law—there are Restatements on contracts, torts, and agency. For issues of federal procedure, there is Wright & Miller (aka Federal Practice and Procedure), which is generally considered The Bible. Many states also have treatises. In Florida, there is FlaJur.
A skillful writer understands this hierarchy and cites the best authority from the best courts or treatises. An unskillful writer doesn’t understand the rule and cites easily distinguishable, unpersuasive, and ultimately unhelpful cases.
5. Analysis And Application
This is the argument section, your analysis, the meat of your brief. Here, you redeem the arguments you signaled in the prior sections by bringing them together. There are many ways of doing this convincingly, see infra Strategies and Techniques, but your goal going in must be clarity. You want to make it appear that it all adds up—your facts plus your law equals an unmistakable point that only a lunatic would disagree with. You play the prince of logical reasoning, the duke of rational thought. Show them why you are right in plain and simple terms. If you’re rambling all over the place, you’re lost, and the court will be, too.
6. Conclusion
A short conclusion should appear not only at the end of the brief, when you ask for the relief you seek, but at the end of every argument. Each conclusion should be short and to the point, see infra Don’t … Write Elaborate Conclusions. This is especially the case at the end of arguments. Sometimes you go such a long way in your analysis that you need to remind the reader what you have accomplished. A short, simple statement, beginning with a concluding term, is enough:
Accordingly, the court should dismiss the defamation claim.
Thus, there is no waiver.
Therefore, this Court should reverse the award of fees.
On the cover of this book is a photo of the scales of justice. One scale holds a gun, the other a small wood gavel. The gun has the decided advantage. You, reader, are the gun. Or, more precisely, your writing is the gun. Or, your writing should aspire to be the gun. Your writing is—at the risk of continuing this tortured metaphor—your first shot, your firepower, your most useful tool.
Not every great lawyer is a good writer. The opposite is not true, either. I don’t know how comfortable I’d be with James Joyce representing me in that breach of fiduciary duty action I’m facing. Or Robert Frost on that easement dispute. Or Thomas Pynchon on that lewd and lascivious behavior charge… The goal in legal drafting is not, as Joyce famously remarked to a friend, to shed “a little obscurity on the matter”—although there are exceptions. Nor is it to add great clarity. It is, rather, a Darwinian pursuit: to win. How do you win? By hammering the other side.
We are back to the gun. The first shot over the bow in a lawsuit is a complaint, or a claim in arbitration, or a demand letter. The next meaningful shot is a response—often a motion to dismiss or, if you’re in arbitration, a detailed “speaking” answer. The case progresses. There are discovery disputes and hearings, mediation, motions for summary judgment, a trial, a judgment, an appeal. At every step, you are preceded by your written submission. In some cases—in many federal courts, some appellate courts, and certain arbitrations—your written submission is the only thing a court or arbitrator will see. The brief sets the tone, frames the issues, makes the arguments and, in the best case scenario, wins the case. A skillful writer will exploit a weaker one, gain the upper hand at the outset, and generate momentum for the client.
This book is intended to improve writing skills and, by extension, advocacy and, consequently, a lawyer’s results. It is not a book for legal drafting in the sense of contracts, settlement agreements, or wills and trusts—technically challenging fields in there own right. It is for the zealous advocate, battling in the trenches of most civilized bloodsport in the world—civil litigation. Do not go out with a cap gun. Go with a .44 magnum, a sawed-off shot-gun, a howitzer—or, in honor of the trio of Russians quoted above (Warren Zevon, b. Zivotovsk), an AK-47. Improve the size of your gun with these things I have written down.
II. Flesh and Bones: The Structure Of A Brief
1. One Way
In his long forgotten 1980s golf instructional video, “Golf My Way,” Jack Nicklaus tells us that, while a golfer has thirteen clubs to choose from (excluding the putter), the golfer needs only one swing. How do we receive this news? At first, gleefully—we’re only one swing away from flagging it every time! Then doubtfully—Jack Nicklaus is a liar! And finally, despairingly—I can’t learn the swing. Writing briefs and motions is easier than playing golf, but there are similarities. Like the variety of irons and woods cluttering up a golf bag, there are as many kinds of motions and briefs—motions for summary judgment, motions to dismiss, motions to compel discovery, all manner of appellate and jurisdictional briefs. They each have their own rules, standards, and goals. However, like Jack Nicklaus said, there is only one formula you need to learn and repeat. It may not help you win six Masters’ titles—though strangely enough it may—but it will help you write an effective argument.
1. Begin With An Introduction
2. State The Facts
3. State The Law
4. Apply The Facts To The Law
5. State A Conclusion
There is nothing revolutionary to this (in law school they teach it as the keyhole method), nor need there be. Jack Nicklaus’s point was that, in golf, a predictable, repeatable, compact swing is preferable to one with many variations and hitches. Wacky swings belong to that sorry lot Jack lumps together under the derisive label, “The Average Golfer.” The difference between average and great is the ability to do one simple thing to perfection, over and over again. Why is it that golfers understand this point implicitly? Tiger Woods was once asked what distinguished him from the rest of the players on the PGA Tour, all of whom could hit great shots and most of whom could drive it as far or farther than he. He replied, “Being able to repeat it.” Lee Trevino put it in even simpler terms. He said the difference between an average golfer and a great one is “this much,” and he put his thumb and index fingers close together next to his squinty eye to show a tiny distance. There is nothing unsophisticated or demeaning with following a formula. The very best do it. Lawyers should do it, too.
2. The Introduction
A good introduction accomplishes three things: It introduces your best argument (or arguments), it seizes an advantage against your opponent, and it states the relief you seek. A bad introduction muddies the waters, drags on forever, and either never makes it point or makes so many points your reader is lost in the swamp. See infra, Don’t … Put Everything In The World Up Top.
The first goal, to state your best argument, seems intuitive enough, but there are hidden complexities. You might not know what your best argument is. And, attitudes often change over where your arguments rank as briefing develops, counterarguments come to light, and hearings play out. What used to be your best argument is now in the garbage, and out comes a totally new best argument you barely considered before. There’s nothing wrong with noting several arguments in your Introduction, especially where you suspect your best argument has weaknesses, but too many start to crowd the introduction. The simpler you can state your points the better. If you have several strong points, strive to make them concise, and don’t try to cram in the weaker ones.
One solution to the “best argument” problem is to take the big picture approach. The second goal—seize an advantage—employs this technique. Perhaps your best argument isn’t a legal argument at all, but is an embarrassing or uncomfortable jam your opponent is stuck in. Perhaps it’s a prior loss you want to exploit. Maybe it’s the fact that the other side is scheming behind the scenes or is being disingenuous about events playing out in another forum. Some things are off limits—you can’t bring up settlement negotiations, for instance. But calling out your opponent for gamesmanship or underhanded tactics can win the high ground. If it is meaningful, it should come out forcefully in the opening.
The third goal lets the court know immediately what you’re asking it to do. This seems as straightforward as it gets, but sometimes—often in injunction motions, for example—the relief you seek gets endlessly complicated. Letting the court know where you are going with the motion is elementary, but sometimes it is so elementary that it is overlooked, or else not very well thought out. It often is one short sentence—“The court should deny the motion.” If it is more complicated, state it as plainly as possible.
3. The Facts
Your facts should beat like a drum. They should be simple declaratory sentences, free of editorial comments, and without overt argument. That is not to say that your facts section should be argument free. Every part of your brief should point the court toward where you want to go, and the presentation of facts play a big part. The argument in this section is not express but implied from the arrangement, style, and structure of the sentences. Take this example, from an appellate brief challenging an award of restitution:
“At trial, the district court heard testimony of nine former customers. All the customers testified that they understood the substantial risks inherent in options transactions and acknowledged that they signed the required risk disclosure documents prior to opening an account. At least seven of the former customers admitted that they were aware of the significant risks involved in trading options before they opened an account due to previous trading experience or on-line research. The nine testifying customers had all ceased trading by, at the latest, August 2002, two years before the government brought the case. Four customers, including the customer with the biggest alleged loss, El Toro, ceased trading options in 2001. El Toro had no dealings at all with either Defendant, but dealt primarily with a broker who left XYZ within six months of the time XYZ began doing business. El Toro followed this broker to his new firm and continued trading commodities with him.”
This paragraph does not specifically say that the witnesses against Defendants were dubious. It shows they were dubious at every turn: nine people testified; seven admitted to knowing the risks going in; all nine had stopped trading years before the case was brought; and the biggest loser of all, El Toro, traded in the very beginning of the company’s existence, with a broker who was gone in six months, and El Toro felt so victimized by his experience that he naturally kept trading with the guy at the next firm.
Picking and choosing among the facts is an art. You don’t want to leave out obviously negative facts, as that only gives the other side a platform to point out the omission. Nor do you want to dive into overt argument. A well done fact section will suggest all of your arguments naturally and set you up for future success.
4. The Law
State the controlling legal principles, standards, and holdings bearing on your issue. Like the facts section, your statement of the law should signal your argument so that, by the time you get there, your reader can already anticipate the point. Ideally, your facts section should flow organically from your facts section and into your argument section. It is the bridge where your readers, having emerged from the plains of your facts, see immediately where they are heading. It should not be a dense tangle of legal principles thrown together on the page.
Lead off with your best case or authority. It’s important to know how to distinguish good authority from bad. Bad, in this sense, does not mean negative authority—a case that actually goes against you. Bad means, not persuasive. Think of it like a poker hand. A royal flush is a reported controlling case hot off the presses (very recent) dealing with your exact facts. Or, it could be an unambiguous statute that wholly supports you. A seven high (the lowest possible hand in five card stud) is an Ante-Bellum, pre-Fourteenth Amendment unreported order from the District of Timbuktu (aka the District of BFE—“E” is for Egypt) with a lot of distinguishable facts and whose holding contradicts a mountain of persuasive cases.
On this continuum there is the sub-category of controlling authority and persuasive authority. Controlling, or binding, authority means a case, statute, or rule that is binding on the court you are in. If you are in a federal district court in New York and are dealing with a question of federal law, an opinion from the Second Circuit Court of Appeals is controlling. Controlling authority, like a flush or a straight in poker, trumps almost everything. So, even if your case is a lone wolf, standing up against a mountain of persuasive cases, you will win because the court must follow it (at least in theory, and assuming it can’t be distinguished). Persuasive authority means a case from outside your specific venue. If you are in the Southern District of New York, a persuasive case might come from the Seventh Circuit (i.e. Chicago), or it could come from a fellow district court in New Jersey. Not all persuasive authority is made the same. Some jurisdictions, particularly in federal court, are given presumptive weight because it is presumed they are experts in the field. The Seventh Circuit, from Chicago, is the leading court on commodities law, while the Second Circuit, in New York, is the leading court on securities law and shipping disputes. Courts in Delaware are leaders in issues of corporate law, since a huge number of businesses are incorporated in Delaware. The converse is also true. A shipping case decided in the District of Nebraska is, on its face, not going to have much persuasive value, since Nebraska is not exactly an international shipping hub. There are also ingrained prejudices. In Florida, opinions from the Ninth Circuit (i.e., California) are looked down upon because of the perception, probably unearned, that its opinions are out of step with the rest of the Circuits.
Treatises are always persuasive authority and are useful if you can’t find a good case to support a well accepted point you know is true. At the top are the Restatements of Law—there are Restatements on contracts, torts, and agency. For issues of federal procedure, there is Wright & Miller (aka Federal Practice and Procedure), which is generally considered The Bible. Many states also have treatises. In Florida, there is FlaJur.
A skillful writer understands this hierarchy and cites the best authority from the best courts or treatises. An unskillful writer doesn’t understand the rule and cites easily distinguishable, unpersuasive, and ultimately unhelpful cases.
5. Analysis And Application
This is the argument section, your analysis, the meat of your brief. Here, you redeem the arguments you signaled in the prior sections by bringing them together. There are many ways of doing this convincingly, see infra Strategies and Techniques, but your goal going in must be clarity. You want to make it appear that it all adds up—your facts plus your law equals an unmistakable point that only a lunatic would disagree with. You play the prince of logical reasoning, the duke of rational thought. Show them why you are right in plain and simple terms. If you’re rambling all over the place, you’re lost, and the court will be, too.
6. Conclusion
A short conclusion should appear not only at the end of the brief, when you ask for the relief you seek, but at the end of every argument. Each conclusion should be short and to the point, see infra Don’t … Write Elaborate Conclusions. This is especially the case at the end of arguments. Sometimes you go such a long way in your analysis that you need to remind the reader what you have accomplished. A short, simple statement, beginning with a concluding term, is enough:
Accordingly, the court should dismiss the defamation claim.
Thus, there is no waiver.
Therefore, this Court should reverse the award of fees.
