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Home | Newsroom | Miscellaneous | DICK’S WRITING TIPS: Brief Writing with Western Center’s Director of Litigation – Part 1

DICK’S WRITING TIPS: Brief Writing with Western Center’s Director of Litigation – Part 1

Richard Rothschild (aka Dick) has practiced public interest law for over four decades, and he’s picked up quite a bit of knowledge along the way. Here are some tips Dick shared with attorneys in our network, now available for public consumption. This week is part one, check back next week for part two!

 

1. Write a Compelling Brief Introduction

What are the goals of an introduction and why should we care? Starting with the second question, think about the many news articles, blogs, posts, etc. that appear on your screen every day. If you are like most people, you read the ones that capture your attention and promise to tell you something you don’t know or that will at least entertain you. If the first few sentences don’t accomplish that, you move on.

Judges presumably are no different. While they are supposed to read everything we submit, the opening paragraph can dictate their state of mind as they go through the rest of the brief. First impressions matter.

A good introduction should accomplish two main goals: 
(1) make the court want to rule in your favor, and

(2) make the judge think that the law and facts require that result.

So how do you begin to convince a judge to rule in your favor and conclude that there is little choice but to do so?

Here are three tips for drafting better introductions:

  • Don’t start the introduction until you have written the rest of the brief. At that point, you will have a better idea of what facts and law are most important, and the first thing you want the judge to read.
  • Try beginning with a few sentences that (1) describe the plight of your client as relevant to the main legal issue; (2) something bad that the opposing party has done; or (3) both. Do so by stating facts, propositions of law, or both that (a) advance your argument and (b) cannot reasonably be disputed.
  • Then carefully edit to keep the paragraph as short as possible. The more unnecessary words you omit, the more powerful your message can be.

Here is an example: 
Angie Christensen’s family was denied public assistance because the Department of
Social Services counted the family as having money it never will receive: her husband’s
wages and unemployment garnished to pay child support owed to another family. The
result for the Christensens and similar families throughout California thwarts the
legislative purpose behind both CalWORKs and child support: to secure adequate
financial support to all California children.

That opening paragraph, while far from perfect, describes in two sentences the plight of a sympathetic client and something bad the opposing party did, using indisputable facts and law. While more would need to be written in both the introduction and body of the brief to win the appeal, at least the reader is left with the impression that “what was done to the Christensens seems like an injustice and legal error.”

If you can give your judge that impression, you are well on your way to winning for your client.

 

2. Avoid Overuse of Acronyms and Parentheticals

When I first started writing briefs and began using lots of acronyms and “hereinafter” parentheticals to explain every possible later reference to an entity, I felt like I was becoming a real lawyer. Years later, when I had drastically reduced the use of those devices, I realized I was becoming a better lawyer.

Overuse of acronyms and parentheticals is the enemy of persuasive writing. A good brief makes the reader want to keep on reading. But when, for example, in a brief on a health law issue I see ESPDT, TAR, HCBS, CFCO, and SPA in the same paragraph, I suddenly remember that long delayed need to reorganize my sock drawer. And if I see an unfamiliar acronym on page 14 of a brief, I have to stop and either flip pages back or do a word search to find the acronym’s origin on page 2, thereby interrupting whatever flow the brief may have had.

Make your reader feel smart vs. alphabet soup
One of the reasons some attorneys use acronyms—either consciously or unconsciously—is to demonstrate their superior knowledge of a subject; the author is a member of a select club of experts from which others are excluded. But that is precisely a reason to avoid overuse. Good writing makes the reader feel smart, while acronyms do the opposite, engendering readers’ resentment.

RIP hereinafter parenthetical
First cousin to the acronym is what I call the “hereinafter” parenthetical. Many attorneys believe that if you plan to use a shortened name of an entity in a brief, the first time you identify that entity you must always write (hereinafter “[shortened version]”). But leaving aside for the moment that you don’t need to say “hereinafter” or use quotation marks, how often do you really need the parenthetical at all?

Consider the following opening sentences in a brief: “The County of San Diego denies necessary health care to uninsured indigent residents whose monthly incomes are $1,079 or more. The County requires residents with annual income of $13,000 to pay for their own care.” Beginning the brief instead with “The County of San Diego (hereinafter “the County”) . . .” would slow the reader down for no good reason. The reader will know that “the County” means San Diego County without the author saying so.

This does not mean that all acronyms and parentheticals are bad. Some acronyms are so familiar that there is no need for the longer version of their referent. Thus, a public benefits brief can and should say “CalWORKs” without explaining that it’s short for California Work Opportunity and Responsibility to Kids.

The problem is not the use of acronyms and parentheticals; it’s overuse. Western Center’s Style Manual advises attorneys to limit their briefs to three acronyms, and to be similarly skimpy with parentheticals.

Questions you should ask yourself and some tips for answering them:
The best way to do that, as with any persuasive writing, is to put yourself in the place of the reader.  How much will the use or non-use of an acronym or parenthetical slow down the reader?  Is the acronym or parenthetical necessary for the reader’s understanding? Here are some concrete ways to answer those questions:

  • If you are only going to refer to the entity one more time in your brief, you don’t need an acronym, and you especially don’t need it for a single reference;
  • If the second citation to the entity will not take place for many pages, don’t use an acronym, as the reader will not remember it;
  • If the second reference to an entity very quickly follows the initial identification, you may not need a parenthetical. Thus, if your first sentence in a paragraph identifies the United States Department of Agriculture, you do not need a parenthetical before writing USDA in the second sentence;
  • Where possible, refer to entities with whole words. If you first identify the Association of Amalgamated Widget Servicers, sometimes the second reference can be to the Association rather than AAWS. This particularly works better for possessives (e.g., the Association’s rather than AAWS’s).  But sometimes a familiar acronym works best, as in USDA above;
  • Sometimes you will need a parenthetical, but you never need to introduce it with “hereinafter,” which you can safely eliminate from your vocabulary altogether. And while many attorneys still use quotation marks (e.g., Orange County (“the County”), in my opinion they slow down the reader for no corresponding benefit. Orange County (the County) works better.

The impact of some acronyms
Finally, consider that the use of certain acronyms may have a psychological effect. For example, many people who advocate for and represent survivors of domestic violence use the acronym DV. Whatever the value of that acronym for internal use, it should never be used in a persuasive document such as a brief. The phrase “DV” seems innocuous, while “domestic violence” conveys at least some of the horror of what it reports. Similarly, a brief on behalf of a sympathetic group such as Seniors and Persons with Disabilities should not shorten that group to SPD.

But psychology can work in favor of some acronyms. If you are suing the Department of Motor Vehicles or the Internal Revenue Service, why would you ever refer to those opponents as anything other than DMV and IRS? Conversely, should you ever find yourself working for the federal government in a tax case, consider referring to your client as “the Service” if you can do so with a straight face.

Making conscious choices
Reasonable readers may disagree with some of the choices suggested in this Tip. If so, that’s a good thing. Persuasive writing is all about making conscious choices. The more we intentionally ask ourselves whether use of an acronym or parenthetical is necessary for the reader’s understanding or instead will slow down or antagonize that reader, the better we can represent our clients.

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