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Tips and Techniques for Writing Effective Legal Briefs

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Tips and Techniques for Writing Effective Legal Briefs

Writing effective legal briefs is an essential skill for successful lawyers.  This course will provide practical tips for drafting your briefs and presenting your arguments clearly.  From the perspective of a seasoned litigator and arbitrator, the course will offer guidance for best practices in structuring briefs, using citations effectively, overcoming writer’s block, and delivering a final product that will maximize your client’s chances to win.

Transcript

Hello everyone and welcome to our program Tips and Techniques for Writing Effective Legal Briefs. My name is Howard Suskin and I will over the next hour, hope to share with you some practical tips and guidelines to help improve your writing legal briefs, and as well to enhance the research and the whole process behind advocacy before a court. I welcome questions, I will try to answer them if possible. If not, I welcome you to write to me afterwards and I'll do my best to to get back to you. So first let me let me begin just by telling you a little bit about myself and what my perspective is on writing effective legal briefs. I'm a partner with the law firm Jenner and Block. I'm based in Chicago. I co-chair the Securities Litigation Practice Group and the Class Action Defense Practice Group, and I'm in my 40th year of practice at the law firm. So over those four decades, I have written, particularly as an associate, many briefs as a partner. I have reviewed and edited many briefs and in addition to my litigation practice. I also serve as an arbitrator for the American Arbitration Association and a number of the securities self-regulatory organizations like Finra. In that capacity as arbitrator, I've had to review briefs that were presented to me by the advocates who were litigating on behalf of their clients. And so I've developed, I think, some experience in what a good brief is and what a less effective brief is from basically both sides of the table, both as an advocate for my clients, but also as a adjudicator, as an arbitrator. And my hope is during this program to share with you some of the good things I've seen and some of the things that could be improved that I've seen over the years. So with that introduction, let's get started. Uh, so let's begin by talking about. The big picture of organizing a brief. Generally, most briefs follow a similar format. It begins with an introduction, and the introduction is really important because most judges or arbitrators that you're appearing before have a very heavy docket. They have lots of cases they have to deal with, and they don't always have the time to dig in, in great detail, to all the particulars of your brief. And so your introduction, which basically is designed to give an overview summary, but also to set the tone for what your argument is. It is very much your first impression that you're making to the court about this particular issue. So you want to keep it simple and direct, and you want to set an appropriate tone. Doesn't mean that you want to go overboard with rhetoric in the introduction, but you want to give a good, clear, simple explanation of what this brief is about, and in particular, what the relief is you're seeking after reading the introduction, which generally should be no more than a page or two. The reader should have a pretty good idea of what your position is. What point you want to make, and in particular, what relief you want the court to to rule on whether it's. We're asking the court to grant a motion to dismiss because the complaint fails to state a claim. We're asking the court to affirm the district court's ruling on appeal, because the district court's ruling was not an abuse of discretion. I mean, those are those are examples of what you want to be able to say in your introduction, while also telling a bit of the story as well. You want to create a favorable impression about your client in the introduction. You want to tell in summary fashion, a very simple story about what the matter is about. And again, by the time the reader has read the first page or two of the introduction, they should have a pretty good idea of what it is that you're asking them to do, and a pretty good idea of what the case and the issue at hand is about. After the introduction, you want to go into more detail about the background and that is in your statement of facts. Statement of facts should be told in a clear, understandable way, usually in chronological order. If there's a story to be told and it should go from step to step to step. An analogy somebody once told me that has kind of resonated with me over the years is think about somebody reading a newspaper while they're drinking their morning coffee. The reading. You know, in a typical newspaper article, sort of the the headline to begin with and then some background about what the story is about. And in between they're taking sips of coffee. So they're kind of being distracted a little bit. Ideally, when you're setting out your statement of facts, you should keep that in mind. You should be walking the reader through the background and history of what occurred, whether it's the actual underlying history, you know, the accident that occurred and how it occurred, who, what, when and where. Or in addition, perhaps the procedural history of the case, whatever it was that led up to the judge being now in the position to have to make a decision about something. But it should, in small steps, piece by piece, in some logical, usually chronological order, tell the story. And you should do your best to make it interesting, to make it empathetic, sympathetic to your client. I would generally, you know, refer to my client as Mr. Smith or John Smith, not plaintiff or defendant. Plaintiff and defendant are kind of impersonal. And you want to make the reader, like your client, feel sympathy for your client, feel that your client has, you know, somehow suffered some wrong or injustice or simply that your client has the equities behind them and you do that in the statement of facts. The statement of facts really sets the tone and the background and hopefully gets the judge on board with supporting your client's position. The facts, and we'll talk about this a little bit more in detail as we go along. But the facts need to be supported by the record. And that means that generally, your statement of facts, if you're on a motion to dismiss, will have citations to the complaint or any exhibits to the complaint, because that's pretty much all you can do on a motion to dismiss, you have to stay within the four corners of the pleadings. If you're writing a motion for summary judgment, chances are pretty good that there'll be deposition testimony or document exhibits, or perhaps discovery responses. And every fact that you cite in your statement of facts needs to be supported by some citation, and you need to make sure that the citation is correct. And it does, in fact, support your position. So there shouldn't be any fact in your statement of facts that doesn't have a citation to something that immediately follows every fact that you cite. The next section. Again, looking at the big picture overview is the argument section. And that's where you present to the court the legal arguments that support your client's case, the factual position your client is in. The legal authorities complement that by saying based on these facts and based on these cases, this is how the court should rule in favour of my client. And we'll talk more as we go along in the program about specifics, about what the argument ought to contain. But that's the section that has your case citations. And then finally, at the very end, you generally have a short conclusion. And a short conclusion should essentially remind the court of the relief that you're asking. So in a motion to dismiss, if you're the defendant, you basically say, for all the foregoing reasons, defendants respectfully request that their motion to dismiss be granted. If you're the plaintiff, you say the opposite. You know, for all the foregoing reasons, defendant's motion to dismiss should be denied. But you want to leave the court with no doubt whatsoever about what the relief is that you're seeking in, you know, at the very end of of your brief. So let me drill down a little bit more granular. Having given you the big picture of what the organization is going to look like, to talk about what goes in each section a little bit more specifically in the argument section. You want to break up your argument in bite sized pieces for the court? Again, thinking back to the analogy of reading the newspaper and drinking coffee at the same time, you want to make sure that the reader is being led step by step and little, little baby steps point to logical, point to logical point. And one way to kind of test that is in many briefs, particularly if they're lengthier, you're going to have a table of contents. And your table of contents essentially is the collection of all of your headings throughout your brief. And you can have headings in both the factual section where you break up the chronology. You know, you can say something like, you know, events leading up to the accident. The actual accident and the events that followed the accident mean that's one way, perhaps, of breaking up a chronology into three items. And obviously it depends on the type of case you're you're dealing with. If you're dealing with a securities fraud case, the kind of case that I regularly litigate, it could be a chronology of this is what the company, let's say you're representing the plaintiff. This is what the company said on January 1st. And then. My clients bought the stock in reliance on those statements. And then this is what happened when the truth came out, when it turned out the statements were not true. You know, we're not correct or we're misleading. That would be a way, logically, to break up your facts facts section into three more manageable, bite sized pieces. Same thing is true for the argument section. You're looking for ways to break it up and walk the reader through in smaller steps. And going back to what I said a moment ago, generally you'll have a table of contents and longer briefs. You should be able to, just by reading the table of contents, to have a very good sense of what happened with regard to the Table of Contents section, for the facts section, and then what the legal arguments are, what the key legal points are. By reading the Table of Contents section of the argument section, and if you're not able to figure out what's going on or what the key legal arguments are simply by reading your table of contents, then that suggests to me that maybe you need to work more on enhancing the various headings in the fact section and in the in the argument section. And that's kind of a good way to test yourself to see if, in fact, you are following a good logical progression. We'll talk about this more in a few moments as well. But you want to use road maps. You always want to, you know, kind of preview for the court where your brief is going. And so for example, you can say in the facts section, in the next section we'll discuss what happened after the negligence occurred or in the next section we'll discuss what the injury to John Smith was. You always want to again walk the court through step by step where you're going, because it's very easy to get confused or, you know, have the court wonder, well, why am I being told this? You know, what's the significance here? So having those sort of introductory sections can be very, very helpful. You also, you know, throughout your brief, always want to be thinking about anticipating your opponent's arguments and how to address them. Now if you have if it's your motion and you have the opening brief, chances are pretty good in most jurisdictions that you will have a reply. And so you don't necessarily want to, you know, address all of your opponent's arguments fully in your opening brief because you know you're going to have the final word and a chance to rebut whatever they say. But if there are some arguments that you know for sure your opponent is going to raise. You may want to anticipate some of that and kind of, you know, not have the court, you know, read your brief and then they read the other side's brief and go, wait a minute. You know, I'm reading the other side's brief. And, you know, the opening brief didn't make any mention of, of this, you know, really significant issue or significant fact. You may want to take some of the wind out of your adversaries sails by addressing some of what you know they're going to raise, but you also want to, you know, it's it's a it's a judgment call because you also don't want to, you know, be so smart that you anticipate some arguments that your opponent didn't even think of and, you know, give them a chance to to make some new arguments that they might not otherwise have have made otherwise. So again, judgment call, but be mindful of, you know, making making that judgment call, whether it's a good idea to anticipate and actually address some arguments even before your opponent has raised it. Always, you know, when you're considering the organization of your brief, be very mindful of the law that you're dealing with. Know which jurisdiction you're in. It's not as persuasive if you're arguing to a Chicago court, if all you do is cite California citations, and we'll talk about this also in a few more moments. But, you know, as you're I'm sure aware, there's a hierarchy of weight that's given to authority if you're in federal court. Obviously look for any Supreme Court cases that are on point. If you can't find a Supreme Court case on point, then look at the Court of Appeals rulings in the jurisdiction that you're in. If you're in the district court, look for other district court cases in your jurisdiction. And this is like super important and think a lot of lawyers don't always think to do this. Look at anything on point that your judge may have written. Judges love to have their citations thrown back at them. It's it's, you know, it's kind of stroking their ego that they're, you know, they've got published opinions and people are actually paying attention to them. So always as part of your research, look to see what your judge has done. And even, for example, let's say you've got a very not controversial proposition of law. Let's say you've got a motion to dismiss and you just want to set out the basic black letter law standard of what, you know, what the standard of, of a court's review is on a motion to dismiss. Chances are really good if your judge has been on the bench for, you know, even a couple years that your judge has written an opinion that has in it the black letter law about a motion to dismiss standards. Use that as one of your citations to remind the judge that the judge has actually, you know, themselves ruled on that particular point. Also, be very mindful if there's a statute that governs your particular issue. A lot of times, people are just so focused on case law that they overlook that there's statutory authority. And, you know, courts have to follow statutes. Um, so always, always make sure that you're checking out that as well. With regard to. So we talked we started by talking about, you know, the big picture organization. And then we talked about having headers and sections to make your your reader more able to follow the progression that you're taking. To get even more granular. You want to make sure you're doing that on a paragraph by paragraph basis as well. Every paragraph should have a topic sentence. Every paragraph should have a conclusion, usually. I wouldn't say like every time, but most times you want to sum up what you've just said. No paragraph should be longer than a half page. If you've got paragraphs that are going more than a half page, you need to look for ways to break them down into more bite sized pieces. It's great to have the luxury. Hopefully you will of time to go back and try to condense and omit words. Sometimes you have no choice because a lot of courts have either page limits or they have word limits. And so you have to go back and try to figure out ways to, you know, cut down on the words. But I mean, that's important even if you don't have a page limit or even if you're able to do it within the page limit, you want to make it as crisp and concise as possible. And again, if you've got paragraphs going more than half page, you need to break it down and have it look more like a newspaper article you never see, you know, newspaper articles that have paragraphs that go, you know, a whole column. It's always broken up for the reader. In terms of tone, it's really important to avoid being sarcastic or being hostile. When I see a brief as an arbitrator or as an advocate on the other side that has lots of histrionics and lots of like over the top rhetoric and lots of like purple prose, um, that to me suggests that they don't have the law on their side, that they have to get all worked up and try to get all emotional because they just don't have the support. And it's just it's never well received when you have that kind of tone. It's very good to be matter of fact, to basically be taking the position. Judge, the law requires that the result we're asking for be reached. And we're going to explain to you why the case law and why the statutes do that. Now, having said that, like I said a few moments ago, and particularly with the statement of facts, you want to write in a way that's, you know, sympathetic to your client and personalizes your client and makes the court want to rule for your client. But you can do that by being respectful to the other side. Never be insulting of opposing counsel. Judges hate that. And and just always, you know, taking the high road. It will it will help you. Um, you want to avoid arcane words. And by that, I mean, you know, it used to be that lawyers thought you had to have lots of Latin stuff, you know, res ipsa loquitur. And the stuff we learned about in law school that doesn't really play very well in court. I mean, judges like briefs that are almost conversational, easy to understand. They don't, you know, don't containing words, Latin words that they have to look up. But even stuff like herewith wherefore stuff like that also is not so good. It just, it makes your brief seem clunky and it's less conversational. So I would, I would avoid, you know, lots of words like that. And if we have time, I've actually got like a sheet that has lots of sort of the words that you want to avoid using just in general because it just doesn't play very well. Footnotes. Excuse me. Use them sparingly. There have been studies that show that readers gloss over footnotes or don't even look at them, and footnotes are often viewed as kind of a lazy person's way of dealing with something that they just can't figure out where to put it, and they don't want to take the time to to actually, you know, figure out the right place to insert it into the text. Chances are pretty good that your footnote won't get read, and in general, you should try to avoid using them. One place that footnotes are actually, I think okay to use is if you want to make the point. That every circuit court that has addressed your issue has ruled the way you want the court to. In order to save time, you can make that point and drop a footnote and then just have a really long string site with each of the 12 circuits. Um, uh, you know, identifying a case in each circuit that makes your points. You're not like using up all the space in the text of your brief, but that's a good example where a footnote would be okay. But in general, um. Avoid footnotes if you can. Basic writing tips mean. I realize, you know, in the space of an hour. None of us is going to be able to make up for, you know, all the time we may have missed in grammar school and high school and, and college in terms of, you know, basic grammar, but but be really mindful about that. Um, if, you know, making sure that, you know, everything's harmonized, you don't have like a singular pronoun with, with a, you know, a verb, that's that's plural. Proofread and be and be mindful of that. Um, always use blue Book and make sure your citation is is correct and at least have it be consistent. I mean, generally I, I grew up with Blue Book and that's what I follow. I know there are some other style forms, but whatever you use, assuming it's an accepted style, be consistent throughout. Um, you know, I love having a thesaurus available online. And oftentimes I'll scroll over a word and click for thesaurus because you don't want to use the same word over and over again, because that's that can become clunky as well. And so oftentimes, you know, trying to think of another way to express something beyond what you've already expressed. Thesaurus is great. And I would I would try to do that. We talked about trying to eliminate legalese in your legal writing. Have it be clearer, plain English and try to use, um, try not to use rather cliches, um, that are you know, that that again, can be sort of corny and it sort of detracts, I think, sometimes from the eloquence of a brief that you might have. Okay. Let's talk a little bit about citations and hopefully give you some practical tips. Um, cases support propositions of law. And so you should have almost say the obvious. You should have citations for every legal proposition you have in your argument section. In general, you should not have any case citations in your statement of facts. If you do, you you really ought to be questioning why you're thinking about doing that. And there really ought to be a good reason. Statement of facts get supported by the record, by a complaint, by the pleadings, by the deposition testimony, by the discovery responses, by the exhibits, not by case law. And so keeping those separate is is very important when you have a citation. I think it's always good to say what the proposition of law is. Um, and then set the supporting case. Um, it's sort of backwards if you give a citation first and then you put in parentheticals what the proposition is that you're supporting. Um, so in general, as I said before, every proposition that you say in the argument section should have a supporting citation. Um, to say it a different way, you state the principle legal propositions as declarative sentences followed by a case citation. Um. Do not. Um, have your key points put in citation Parentheticals. If you have a key point that you want to make, say it and then support it with the case cite and then kind of like in the same category as footnotes. Avoid long block quotations. There have been studies that have shown that readers glaze over block quotations. Now, you may have a really good quotation from a court that you're citing that you really want to present to the court, and that's fine. But the way to do that is in the text of your brief say. I'm going to make up a proposition of law. A motion to dismiss must be adjudicated based solely on the four corners of the complaint. Say that. And then if you have a long block quotation where a court has said a court cannot go outside the four corners of the complaint, the court must confine its inquiry to the pleadings themselves. That's kind of a long block quote. That's okay. If it's if it's a really important or weighty authority, and you really want to have those words presented to the court, it's fine if you have led into it with basically reciting the proposition in your own words, because then, you know, the reader will read what's in your text for sure. And maybe they will look at the block quotation without totally glazing over. But you'll make sure that your point is made because it's in the text. So again, if you're finding that you've got long block quotations in general, you shouldn't have them very much. If you do have a block quotation that's long, make sure you have the lead in as well. And then whenever you use the citation, see like see Smith versus Jones. You should always have a parenthetical explaining what it is in that case that you want to point out to the court. Uh. I'm sorry. Let me make sure I didn't skip over the slide. There we go. Okay. Um, as I said a moment ago, use consistent citation format. Always use jump or pinpoint sites. And those are when you set a case. Smith versus Jones, 36 F, second to 91, seventh circuit, 1989. That's not a good sight, because you have not told the court specifically what page number within that case citation. Your point is contained in. And one thing that I can tell you as an arbitrator, I really don't like and I really get annoyed by, is when when the parties in their brief just give the case citation and they don't point me to the particular page on which that proposition is is supported. And I'm sure judges, their law clerks feel the same way. I mean, they've got enough work to do. Don't make it more difficult for them to try to figure out, well, where where does that say that have the jump cite always. In general, you should avoid long string sites, meaning multiple, multiple, multiple cases. If you have one really good case, that's by the Supreme Court on point. Go with it. You don't need to have a dozen other cases cited that follow it. You can have maybe 1 or 2 more, particularly if your judge has ruled on that point in your favor previously, but not long string sites. And then. The last bullet point. I can't emphasize this enough. You have to make sure your citations are cite checked, that they're accurate, and they stand for the proposition you said they do. It is. Horribly self-destructive for you to cite a case and then have your opponent and their response say, oh, judge, that case was actually overruled on appeal. It's not a good citation. Total disaster, in part because you've you've been proven wrong. But even more so your credibility now is at issue. I mean, for for you to cite for won't say you I'll say it for me, for me to cite a case to a court and not tell the court that the case has been overruled to me is like, you know, beyond embarrassing because, again, my credibility is now being questioned or will be questioned. So can't emphasize enough. You have to make sure that everything that you present to the court is correctly cited. And that's true for your fact section as well. You know, if you cite a particular fact and then you have a citation that follows it, you better make sure that that whatever you're relying on. Stands for and supports exactly what you represented to the court. Credibility is so important. And it's really, you know, a really a, you know, huge disservice to your client if you've done something in writing the brief by presenting an incorrect citation that, you know, calls into question the integrity of what you've done. So to recap some of our key points so far. Avoid overuse of the black quote that's likely to be overlooked by the court. Um. Use your client's name. Personalize it. If your opponent, you know is a person who has a name, use it as well. You don't want to say in writing your brief, let's say you represent the plaintiff. Refer to the plaintiff. As you know, John Smith. John Smith did this, John Smith did that. And then refer to your opponent as defendant. I mean, if you're going to personalize it in that way, be consistent. And, you know, throughout it goes a long way to emphasizing that you're being professional and civil. It's sort of a common pet peeve that a lot of people have is not knowing the distinction between which and that. Generally you use which if you have a comma preceding it, it's sort of a modifier for what you just said. Um, you know, to give an example, I mean, State Street is often a busy street. Comma, which is why it's viewed as the heart of downtown. You use that when it's not really the same kind of modifier, and you don't have a comma that appears again, maybe a minor point, but one that does, you know, again, along with grammar, sort of indicate a lack of care in some way. So you want to always be careful. Try not to write in the passive voice again to make your your narrative more interesting. You want to tell an interesting story in a kind of like action dynamic sort of way. And I know it can be difficult sometimes. I mean, sometimes if you're writing a brief about a tax issue, which for me would be like torture to do and really difficult to make interesting, at least make it clear and make it, you know, concise and small, you know, declarative sentences. So the reader at least can follow and understand what you're talking about, particularly if it's a highly technical issue. But, you know, even in a tax case, suppose if you're representing the taxpayer and they've been hit with what you believe to be an unfair, unlawful tax assessment, you know, make make your client sound sympathetic. You know, they're a hardworking individual. They've always paid their taxes on time, and now they're being hit with an onerous penalty that is not supported by the law. I mean, so look, guess I just disproved myself. You can make even a tax case kind of interesting in a way. Oh for sure. Avoid any kind of sexist language. Use gender neutral pronouns, and or refer to their occupation. Um, you know, again, there's been a lot more sensitivity to that. I think it's probably a good thing overall. Um, so just be mindful about that. The one thing that I think sometimes is not such a good thing. Um, and I have a suggestion for working around it. Um, some people think in order to maybe go a little bit overboard the other way in referring to, um, not your client or the other side, but just like a, like a hypothetical person will say, um, uh, a plaintiff always. Bears the burden of proof when she. Is offering evidence. And it's to me it's a little bit odd. It's like, where did she come from? Who is she? If you know there's there's not a female, you know, in, in the chronology or in the story at all, a way to avoid that and still be, I think, appropriate and respectful is to have the. Subject that you're referring to be referred to as them or they so or make it plural to me. Again, you have to be consistent. But say, you know, when plaintiffs are presenting evidence, they have the burden of proof. That way you're being completely neutral and not offensive and not cute in a way that I think sometimes, you know, flipping to the feminine pronoun, it's like, why? Because, you know, and it leaves the reader sometimes wondering, who are you referring to if there's not an obvious person in that way? So anyway, be gender. Be gender neutral. I think that's always the safest way to be. And if and I mean, I've been involved in cases in some of my pro bono cases, um, where you're dealing with someone who is, for example, advocating for transgender rights, it's really important to be respectful and to use the appropriate, um, usually gender neutral, um, reference to that person, because otherwise it could be very easy to be viewed as disrespectful if you're not paying attention to that. Um, avoid acronyms and abbreviations if they're not obvious. I mean, sometimes, you know, like everybody knows what that is, is in my world, everybody knows that's the Securities Exchange Commission. But, you know, sometimes with a lot of these federal agencies or state agencies or organizations, it's not obvious what you're referring to. And that's a really easy way to sort of trip up the reader where they're like, who are we talking about now? What is that? Um, so just be very mindful of that. Avoid using the phrases clearly or obviously. Oftentimes there's sort of a sense that if somebody says this clearly is something that in fact it's not clear that, you know, the whole reason they're saying clearly is because they want to make the reader think that it's clear when it's not. And, you know, if there's a dispute, you know, it's probably not very clear or obvious at all. So in general, avoid using those adjectives. To me, it's sort of a radar or a red flag that, hey, if they're saying this clearly, maybe it's really not. So anyway, just be a matter of fact and and just state your. Just state your points clearly. Not clearly, but state your points matter of factly without saying that they're clearly or obvious. So we're about to embark on kind of a new topic. I'm going to talk a little bit about some practical tips for drafting your briefs and, you know, practical considerations you might want to think about. I'm going to pause here, though, and remind you again if you have any questions. I'm keep an eye on the Q&A section of my screen. Happy to try to address some. Sometimes the most interesting points I can get across are prompted by people raising a question that they've encountered in, in, you know, their role of drafting or writing briefs. But again, I repeat the invitation. If there's something I've said that you want to follow up on or something that I haven't covered that you're curious to get my take on, feel free to email me. My email is my first initial last name H Suskin azcentral.com. Okay, so now let's pivot to some practical rules of brief drafting. And you know again my goal in this program is. To to hopefully share with you. Let's say a half dozen takeaways. So half dozen practical takeaways that you may already in the back of your mind kind of be aware of generally, but having heard them from me and having me emphasize them hopefully will resonate with you when you're actually in the process of drafting a brief. So with that, here we go. Some basic rules of brief drafting. Now, I'm assuming that many of the folks on this call are associates at their law firm, and that they have partners who are reviewing what they are drafting for ultimate filing with the court. Some of you may be partners or solo practitioners, who are the ones who are actually drafting and then submitting directly to the client. So some of my my tips are directed to both scenarios. You know, you're submitting it to somebody internally at your firm for review, or you're submitting it directly to the client for their review. First point, every draft you submit to the client should be something that you would file in court. You really want to not give the client something that is so rough that it doesn't give a client a real sense of what you're proposing to file and requires the client to, you know, be left guessing a lot about what it is you really intend to do. So, in my view, you should really give the client a draft that you believe as the lawyer is ready to go, and you're basically just running it by the client to make sure that you've got the facts right and that they're on board with whatever it is you're arguing because you. Certainly. In my experience. You know, again, I hate to say never, but this comes pretty close to never. Um, I can't think of an instance. Off hand where I have filed something in court that I have not shared it with the client beforehand and gotten the client to agree that it's it's good to go. There's obviously, you know, significant malpractice risk if you don't share your drafts with your clients. And. You know, give them a chance to weigh in. Because if you've got a fact wrong and you file it without the client having a chance to correct it, that's that's a huge problem. Um, again, with credibility with the court. Um, again, as we said earlier, always make sure you check the draft before you submit it for editing and client review. It's like really bad to, you know, give the client a draft that has, you know, a key case cited in there that you have to remove because you discovered too late, you know, before you sent it or discovered it, after you sent to the client that you can't rely on that case anymore. So do your cite checking before you give it to the client. This this point is directed to the associates on the line here. Um, if if you've drafted the brief, if you've had a significant role in drafting it, put your name on it. You should get credit for it. And, you know, you may have a partner. And I've been there as an associate and as a partner who says, you know what? We've already got three partners on the brief on this case, and I don't want the court to think that we've got a whole army of lawyers. And the other side is like a solo practitioner, and it's like David and Goliath. So we're not going to put your name on the brief that'll happen. Don't be offended. Um, it's a it's a strategy call. It's a judgment call. But let the partner be the one to make that decision. Your name should be on the brief. The partner can take it off if they feel it has to go, come off. But, you know, there should be pride and authorship on everything that you've drafted. This is the next point. Super important. You have to make sure that you know what the court rules are governing the format of your brief, and that means things like, um, no, the page limit or the word count. You don't want to get the judge ticked off with you because you exceeded those. If you have a complicated case that requires more than the allotted, you know, usual allotted time, file a motion for leave to file excess pages. The proper way to do that, in my view, is check with the other side first. See if they will agree. It's much easier to get the court to approve if the other side agrees. Tell the other side. If you give me 15 extra pages for my opening brief, you can have 15 extra pages for your response brief. And that way you tell the court it's an agreed motion. Both sides are asking for the same amount. Your chances of getting that accepted by the court are a lot greater than if you just unilaterally. File it without getting the other side to consent. And in general, as a matter of professionalism, you always want to consent to that. You know, if the other side asks you, you need to, I think, generally agree to that, unless there's some really good reason, which I would find hard to, you know, identify what that would be. Um, professionalism goes a long way. Same thing is true about extensions of time. Unless there is, you know, some really compelling emergency that requires you to have the court make a ruling, you know, really, really quickly. Um, almost always. And clients don't always like, like, to hear this, but, you know, almost always I will tell the client, the other side asks for an extension. We should agree, because chances are the court is going to grant the extension anyway. So you might as well be decent and professionally civil about it. And you know, you don't want to be in a position where you've been, you know, difficult in not agreeing to the other side's request for an extension. And then when it comes your turn to write the brief, oh my gosh, suddenly, you know, you got the flu, you're out of the office. It falls when you have a vacation, and you need to go to the other side and ask for an extension that you know that is not a good position to be in, where you've been kind of a jerk about not allowing the extension for the other side. So always do that. Going back to the court rules, though. Mean again. Can't emphasize enough how important it is to make sure you're aware of the rules. Not only the page limits the typeface. I'll tell you a funny story in think. This is true in every court of appeals, and they may not all be the same, but in like the Seventh Circuit where I practice on appeal, your opening brief has to have a blue cover, and the appellee's brief has a red cover, and the reply brief has a yellow cover. I remember early on in my career, um, not me, one of my colleagues, um, their favorite color was green, and so they like, had the brief prepared with a green cover. And the docket clerk, you know, didn't know any better at the moment and took it over to the the court clerk. And the court clerk wouldn't let him file it because it was it was like nobody has a green brief. So you don't want that to happen to you. You don't want to have to put in all the work. And then you find out that your brief is rejected for filing because you didn't follow the format. And every court has local rules that govern what you have to do. And sometimes judges have their own. Oftentimes judges have their own rules about what you have to follow. Make sure you know it. A corollary to all this is that, you know, many times in your practice, you may be in a jurisdiction that is not your own jurisdiction. It is really important, in my view, to always have local counsel there advising you not only about brief writing, but brief. You know, the briefs are obviously really important, but everything else, it is very easy to get hometown if you show up as a stranger in a in a foreign court. Judges like their local practitioners, they sometimes don't like, you know, for example, you know, big city lawyer like me coming to a small town and, you know, even as modest and humble as I try to be, the court may think, hey, you know, why is the city slicker here? Where's my local, you know, lawyer? And they want to keep the local lawyers employed. So you have to you generally almost always have to have local counsel, but use your local counsel to advise you about, you know, the requirements for briefs. You know the format, what the judge's preferences are. How does a judge react to motions for extra pages? Some judges are really, really hard nosed about it and won't give it to you. Your local counsel will tell you that, and we'll have a real good sense of the pulse of the court. In addition to making sure that you're complying with the court rules, particularly for an associate, it's really important to make sure the person in charge of the brief at your firm, if you're writing for somebody who's going to review it, has a preferred format and follow that. You may want to, you know, get some samples of briefs that the partner you're working for has written before. So you have a good sense of what they like and their style, you know, as well. That's a really, I think, good way to make sure that you're being consistent with what's expected. Spell check. Don't have any typos. And don't rely on spell check. Mean spell check. Will will sometimes change what you've written. To a perfectly correctly spelled word. But is not the word you intended it to be. Um, you. There's no substitute for reviewing your own work product, you know, and everybody has their own way of doing it. Um, I like to have it be on, like, a credenza, so I'm, like, not sitting at my desk. I'm actually standing up at a credenza reviewing it word for word. Um, if you have a secretary, it's great to have your secretary maybe look it over and proofread. But don't rely on your secretary because they don't have usually they don't have your legal training, and they might not be able to spot a typo or the wrong word that was somehow used. Learning to edit your own work is really, really important, and it's a skill that you develop over time. Do not hand in your drafts to the supervising partner the day the brief is due. Do not give it to your client the day the brief is due. It's really mean. One of the things that I've been told sets off clients is when they get a brief, they're told, hey, we've got to file it at 4:00 today. Here's the draft. Mean clients can't always drop what they're doing to look at it, and they may want time to think about it, to make sure that they're comfortable with the tone or the content. So one of the skills you learn as a lawyer. Particularly as the young associate is. Pace yourself. You know, if the brief is due on December 1st, make it your goal to get the draft done by November 15th so that you have two weeks to share it with the supervising partner, share it with the client. And and this is maybe the most important thing for you to be able to put it aside for at least a day and look at it fresh, because it's so easy. If you're so familiar with your own brief to kind of gloss over it and you're not even reading it anymore because you know what's in it and your eyes are glazing over and you're missing things. So again, those are practical tips that you really need to follow. And I know we're all busy. We all have so many other things going on. It's just an important, practical skill to develop. Pacing yourself, setting an interim deadline, sticking with it, and giving yourself the luxury of being able to review your work. Just like putting in a citation that's been overruled is, you know, in my view, a capital offense, maybe not quite a capital offense, but having a brief with typos is a really bad thing because again, I will tell you, we're in my arbitrator hat. If I get a brief that has lots of typos, I'm thinking to myself, they're not being really careful here. And if they're not being careful about like the easy stuff, like not fixing typos, how can I really trust them to be careful and credible with the more difficult stuff like setting case citations that really stand for what the propositions are or, you know, representing to me credibly what the facts are and that the facts are supported by the record. So again, it's it may sound sometimes like it's a little thing, but it's not. Um, again, it goes to credibility, it goes to diligence and your level of professionalism and care, even the little things. And you should sweat the little things because they create, they create an impression, hopefully a favorable impression. If you have a brief that is really, you know, pristine citations are supporting the whole brief, has no typos, no grammatical errors. These kinds of things are important. Said a moment ago. No, the applicable court rules, page limits points and authorities, the format and even even when you, you know, have. 30 pages for an appellate brief, for example. That doesn't mean you have to use them. Again, being concise, being crisp goes a long way and not being repetitive. Oftentimes I'll find when I'm editing my own briefs, it's like, you know, I've already said this. I don't need to say it again. Um, it doesn't emphasise like that. Like repetition doesn't necessarily benefit things. You just make your point clearly once, and that ought to be sufficient. Always at it. At it again, considering having a non-attorney, read your brief for comprehension and proofreading. You know, that's if you have the luxury of a support staff available to do it. That's a a good thing. But you always don't have that. And so, you know, ultimately you are responsible for the finished product that you've created. And so, um, just making sure that you're comfortable that you've put in, you know, a really good effort to try to, you know, identify, um. Um. You know, anything that might be off kilter or, you know, just incorrect in some way is really important. The editing process is probably the most important, the most important part of drafting a brief. Um, so I emphasize that as well. We've got just about five more minutes. I will conclude with a few more. Um. Practical tips, but I do want to give anybody the opportunity to ask questions if they would like to, for the benefit of the whole audience. Okay. Um, so let me wrap up with maybe a few more, uh, a few more points and we'll go from there. Uh. Writer's block. I often get this question, you know, how do you deal with it? And particularly if you've got like a, a not simple brief, you know, maybe an appellate brief that really has a lot of issues and the partners assigned you to do this, or you have to do it on your own because, you know, either you lost or won in the lower court. And, you know, there's a brief that has to be filed. Sometimes the. It's just the enormity of of doing that can be overwhelming. And so I have. Two tips that have helped me over the years. So I'll share those. And, you know, hopefully it'll resonate or at least give you something to think about if you're caught in that writer's block. One thing that I do. Um. It used to. It's funny. It used to be when we had dictaphones, which some of you on the in the audience may be like, what's a dictaphone? Um, but you would basically dictate into a cassette recorder, and then I'd give it to my secretary, and my secretary would just type what I wrote, and it was stream of consciousness, and it was like a total mess sometimes. But I got something on paper and it gave me something to begin working with to edit. Nowadays I don't have a dictaphone. I just have, like all of us do, a laptop or a desktop. But what I will do is and I'm a pretty good typist. Um, and I suspect many of you are now as well, because we're all on our computers. I will just start like a stream of consciousness typing away. This is what I want to say. This is why the other side is wrong. This is the strongest argument that I've got for why my client should prevail. Um, or if you're doing a statement of facts, here's the story of what occurred. First this happened, then this happened, then that happened, then that happened. And I will just type away. Type away. Type away. A million typos, horrible grammar. But got something on paper to begin to work with, and I can't emphasize enough how helpful that is to me to get started. And and if you have those moments of writer's block, I encourage you to think about doing something like that. The other thing that I do, which helps me is a break. Just like I told you in my explanation earlier, break things up for the reader and bite sized pieces. I break things up for myself in bite sized pieces, which means I know I have like five different issues that I have to address for the court. So I'll go, okay, I'm just going to do issue number one. I'm just going to focus on issue number one. I'm going to get that either on note cards, or I'm going to do my stream of consciousness thing on the keyboard. And I'm going to get that one section done and I'll print it out, put it to the side and I'll go, okay, I'm going to do another section. Now I'm just going to talk about it. I'm just going to get it down in writing. And then ultimately, like a puzzle, you put the pieces together and it's like, okay, I have to decide what point do I want to start with? What do I think is my strongest point? What point is maybe not as strong but don't want to waive it? I don't want to, you know, exclude it from being in the brief and it's kind of like shuffling cards and, you know, again, by putting the bite sized pieces down first and then assembling them together, I actually feel like, okay, I've got I've got a working framework that I can I can move forward on. And it really has helped me over the years. And I tell you, you know, writer's block, it gets easier. I remember as a beginning associate, it was really tough even to write like a letter, like a, like, you know, a letter to the other side. I would struggle with it. It gets it gets easier as you get more seasoned. But even a seasoned lawyer, you know, when I'm facing the, you know, blank screen and I know I've got to get something on paper, it can be daunting. So hopefully those two final tips will will help you along as well. Okay. With that. Just want to thank everybody for participating. I really hope we've met the goal of giving you at least at least a handful of practice pointers to consider. As you are writing your briefs, make sure you're always avoiding the legalese, the wherefores, the where two fours. Write in simple English. Be conversationalist. Make sure you proofread. Make sure you cite. Check if you you know if you've absorbed at least those key. Tips. You're going to do great and look forward to hopefully, maybe even having the opportunity to read some of your briefs someday if you appear before me as arbitrator. So with that, I think I'm going to stop and wish you all the best in your brief writing and brief, brief drafting.

Presenter(s)

HS
Howard Suskin
Partner
Jenner & Block LLP

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