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DICK’S WRITING TIPS: Brief Writing with Western Center’s Director of Litigation – Part 2

Welcome to part two of Richard Rothschild’s tips for effective brief writing, a follow-up to last week’s part one. Dick has practiced public interest law for over four decades, and he’s picked up quite a bit of knowledge along the way. These are tips Dick shared with attorneys in our network, now available for public consumption.


1. Don’t start off on the wrong footnote: the best and worst uses of footnotes

Footnotes are the bread and butter of law reviews and certain treatises. They are used to provide authority for virtually every sentence in the text; to expand upon points in the text; or just to provide side comments. While all of these may be worthy functions in academia, litigation briefs are different. Footnotes should play a much more limited role; use them judiciously.

Part 1: The Worst Uses of Footnotes —

Putting all the cites in the footnotes: Some brief-writing seminars promote the idea that all citation to authority should be placed in footnotes. This is controversial and should be avoided for two major reasons.

First, it’s not good advocacy. It makes the writer the show, when the show should be the law. The goal of your brief is not to have the judge conclude, “wow, that was a well-written brief!” Rather, you want the judge to think, “yes, counsel did a good job, but of course the facts and the law were totally on their side.” For that to happen, the authority should be in the text. In addition, if the reader pauses to read the footnote, that interrupts the flow of the text.

Second and perhaps more important, courts simply don’t like all the authorities in the footnotes rather than the text. One or two courts have rules prohibiting it, and both appellate justices and senior research attorneys I have heard unanimously condemn it.

Making arguments in footnotes: We have all done this, myself included. It’s particularly tempting when you don’t know where an argument fits into the organization of your brief. But that’s all the more reason to re-evaluate your organization, or to re-evaluate your argument. If the point is important, it should be in the text. If not, it shouldn’t be in the brief at all. Otherwise, you are sending mixed signals. As one appellate court cited in the Rutter Group’s practice book stated, “We are not fond of footnote arguments, as they make us unsure whether the appellant is attempting to raise a ground on appeal or is merely making a passing comment.”

“Educating” judges with information they don’t need: When you know a lot about a subject, it’s tempting to share that information with an audience, especially a captive one, and you might think that footnotes are a good way to do that. Think again. The goal of the brief is to persuade the court, not provide the judge with a free webinar. Ask yourself if the information is necessary for the judge to understand and decide the legal issue. If it is, the information belongs in the text. If the answer is no, delete.

Digressions: Avoid any footnotes that begin with “By the way,” or could easily begin with “By the way.”  Stay focused.

Part 2: The Best Uses of Footnotes –

When necessary to preserve the flow of the text: The brief writing seminars are correct that throwing lots of lengthy cites to authority in the text, especially in the middle of a paragraph, can interrupt the flow of the argument. Sometimes a footnote can help with that problem, as, for example, when you paraphrase a statute and provide the text in a footnote. Footnotes can also help with unusually lengthy citations, such as some internet sites.

When an early footnote saves later space: In a related vein, a footnote placed early in a brief can save space in the later text and make the text easier to read. If, for example, the brief concerns CalWORKs or Medi-Cal, the first time you cite to a statute you can drop a footnote saying, “Unless otherwise stated, all statutory citations will be to the Welfare & Institutions Code.” Then further citations to that code can be signified just by “Section” or “§” followed by the relevant number of the code provision.

Collateral Points: The CEB practice book acknowledges that footnotes can be used to “mention a collateral point.” For example, if you are raising a point on appeal that wasn’t made in the trial court, you might acknowledge that in a footnote and explain why it’s permissible to do so under the circumstances. But arguably, even then you might want to make the point in the text or save it for potential rebuttal in a closing brief. In any case, I agree with everybody who has written on the subject that the use of argumentative footnotes should be very limited. So while it’s unnecessary and maybe not even desirable to eliminate all footnotes from your briefs, use them sparingly and wisely.

2. Addition by subtraction: Improve your advocacy by avoiding these ten words and phrases

What you omit can often improve your advocacy as much or more than what you add. Helpful omissions can range from entire arguments to just a word or phrase.

Here are ten such words and phrases:

1. “including but not limited to…”
Think about it.  Why the “but”?  Is there some universe in which “including” means “limited to”?

2. My oral argument favorite: “With all due respect, judge . . .” 
It doesn’t matter what comes next; when I hear those words in a courtroom, I immediately begin looking for a table to duck under. The judge knows what the attorney really means is, “your power to hold me in contempt prevents me from saying out loud what I really think of you.” And the judge suspects that whatever the attorney next says will be anything but respectful. It’s part of the job description to disagree with a judge at times. You should do so politely and yes, with a respectful tone, but without the “with all due respect” nonsense.

3. “As [opposing party/counsel] well knows . . .”
Three problems with that: (1) you don’t usually know what your opponent knows; (2) it is almost always irrelevant; and (3) it’s likely to irritate the judge as uncivil. Just state your factual or legal proposition without speculating on what your opponent knows. This advice applies equally to communications with opposing counsel (i.e., “as you well know”), especially in settlement negotiations. You want to convey the strength of your position, but without potentially scuttling the negotiations by making matters personal.

4. Using “said” as an adjective, as in, “defendants misconstrue said statute.” 
To be sure, “said” is a perfectly good verb. Indeed, the late Robert B. Parker, in his Spenser novels, never used any other verb to describe dialogue. But as an adjective, “said,” along with its cousin “aforesaid,” is pretentious legalese. Stick with “defendants misconstrue the statute” or “that statute.”

5. [when representing the plaintiff] “Plaintiff contends…”
That suggests: “this is what my client believes; personally, I’m not too sure about it.” Don’t distance yourself from your client; just make the argument.

6. [when in California state court] – “California Civil Code section 1942.5 provides …”
Regardless of what is suggested by the Bluebook, which is written for a national, academic audience, you don’t need to tell a California state judge we’re talking about the California Civil Code, not Mississippi’s. (Unless, of course, you are talking about Mississippi). Same goes for “California Legislature.” Just plain “the Legislature” will do.

7. “Clearly” is the most over-used word in legal writing. 
At best, it means that the author thinks the argument that follows is right, which is not very persuasive. And at worst, especially if used repeatedly, “clearly” will be construed as quite the opposite: i.e., the author doesn’t have the facts or the law, but thinks that shouting at the judge will carry the day. It won’t.

8. “Plaintiffs, through their attorney of record, hereby submit their opposition to the motion…” 
Leave aside for a moment whether the first thing you want the judge to see is what is already apparent in the title of the brief. If you are signing the brief as “Attorney forPlaintiffs,” you don’t need the italicized information. Same with “the parties, through their respective attorneys of record, stipulate . . .” Admittedly, in a stipulation this is fairly harmless. But still, if you omitted that phrase, do you think the reader would conclude that the parties are stipulating through their respective baristas?

9. “[Opponent’s] self-serving declaration…”
Describing a declaration or statement as “self-serving” is unnecessary, unless you think that ordinarily people deliberately make statements that are self-destructive.

10. [when opposing a discovery request]: “this is nothing more than a fishing expedition.”
Of course it’s a fishing expedition; if they already had the information, they wouldn’t be looking, i.e., fishing for it. And if you need to use an insulting metaphor, try something that wasn’t rejected by the Supreme Court 60 years ago. Greyhound Corp. v. Superior Ct., 56 Cal. 2d 355, 384 (1961) (“there is nothing improper about a fishing expedition, per se.”).

While I stand by my position on all ten of these examples, I don’t claim these are necessarily the most important offenders. They are just ten personal favorites, and if you want to call them “pet peeves” I won’t be offended.

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.

Legal services attorneys help people experiencing poverty enforce their rights, but federal restrictions on funding prevent opportunities for lasting justice

Federal funding for legal services began as part of President Lyndon B. Johnson’s war on poverty. With the legislative successes of the Civil Rights Movement in the 1960s, people living in poverty needed lawyers to access the courts and assert their newfound rights.

New legal services groups sprouted up across the country, and existing privately-funded programs expanded; both were very successful at serving thousands of low-income folks and winning cases.  Before 1965, no legal aid case made it to the Supreme Court, but following federal investment in legal services, over 200 cases made it to the high court, and legal services won most of them.

From the outset of the program, that success drew ire of both corporate and political interests over the continued funding for legal aid. For example, in 1969 then-California Governor Ronald Reagan attempted to defund California Rural Legal Assistance (CRLA) because of its success in court against corporate dairy farmers and the state.  Reagan’s attempt failed spectacularly when a commission of three state Supreme Court justices, all Republicans, vindicated CRLA against all 127 charges.

When most of the war on poverty was dismantled, the legal services program survived.  The last bill President Nixon signed into law before resigning in 1974 established the Legal Services Corporation, which remains the largest source of funding for the nation’s legal aid programs.

But old animosities did not die.  When Reagan was elected President, his administration tried to eliminate funding for LSC altogether.  When this effort was thwarted by bi-partisan support for legal services, he appointed extremists to govern the national program.  This had a very real effect of limiting legal aid groups in their ability to challenge an unjust status quo.  Further, it kept legal service organizations battling to maintain funding – diverting time and energy from fighting poverty. Western Center’s successful case against the Legal Services Corporation for its arbitrary denial of funding in 1984 is one example of such a battle.

Then, in 1995, the Newt Gingrich-led Congress eliminated federal funding for national and state support centers like Western Center, and imposed additional restrictions on LSC funding with the clear intent of preventing legal aid groups from seeking systemic change.

These are some of the restrictions that have been imposed on LSC organizations through the years: (1) no class actions, eliminating the major procedural mechanism to represent masses of people wronged by an entity; (2) severe restrictions on legislative  and administrative advocacy; (3) no organizing; (4) no representation of undocumented immigrants; (5) no representation in cases involving voting redistricting; (6) no representation of people facing eviction from public housing based on a drug conviction; (7) no civil representation of prisoners; (8) no cases seeking statutory attorneys’ fees, a restriction that lasted from 1995-2009; (9) no school desegregation cases; (10) no abortion cases; and (11) no litigation or other advocacy “involving an effort to reform a Federal or State welfare system.”

Perhaps worst of all, most of these restrictions apply not just to the federal funds received by programs, but also to money received from other sources, such as private donations.  In other words, legal services attorneys, who represent clients in need of the most aggressive and creative representation, are faced with restrictions not imposed on any other members of the legal profession.

It’s evident that these restrictions are designed to preserve power and eliminate the opportunity for people experiencing poverty to access real justice.  Limited funding (and for a long time, limited ability for legal aid groups to seek attorney’s fees in cases they won) keeps legal aid attorneys chronically under-resourced, overworked, and underpaid.  The prohibitions on class actions and restrictions on lobbying are intended to prevent legal aid firms from addressing systemic issues faced by the broadest numbers of people living in poverty, like institutional racism and residential segregation. All of these restrictions serve as dog whistles at best, targeted dehumanization to keep people in poverty at worst.

We are proud to partner with advocates in LSC-funded programs who, despite restrictions, work daily miracles for their clients.  Imagine what these creative and talented advocates could do if they did not have one hand tied behind their backs.