Legal writing, or any writing for that matter, is a mentally demanding and complex activity requiring sustained effort and attention. Lawyers often face difficulty in providing that effort and attention within court-imposed deadlines for multiple reasons. Solo practitioners or small-firm lawyers have to wear many hats each day and have multiple administrative tasks that divert their attention from their caseload. Similarly, attorneys that practice in multiple areas are often required to mentally “shift gears” to entirely different subject matters as they move from file-to-file in a given day or project-to-project in their practice, preventing the kind of structured focus needed to write well. Many attorneys are deadline-driven, and, when competing deadlines overlap, it becomes difficult to juggle them all. Whatever the reason, the inability to devote full attention to legal writing causes the writing to suffer.
This is especially so with appellate brief writing, which is a special type of advocacy that most attorneys do not specialize in or have a great deal of experience in preparing. When an attorney inevitably finds himself or herself against a deadline to file a brief, the rush to get the job done often has adverse consequences. Here, at CP Legal Research Group, we have assisted thousands of attorneys with their briefs. We frequently see the results of a looming deadline and inadequate time to provide the required focus on the brief. Below are five briefs to avoid, even when faced with a filing deadline:
#1 - The See-What-Sticks Brief
This brief usually appears when the attorney has not taken the time to properly review the record and do some preliminary research on the potential issues to narrow down those issues with a moderate chance of success from the hopeless ones. Therefore, the attorney feels compelled to “throw everything against the wall and see what sticks.” The results are almost always dismal, and the brief reflects the lack of focus and direction.
Too many issues make a bad brief. An appeal is not a law school examination, where extra points are given for spotting and discussing every legal question buried in the case. Make sure that you properly evaluate the issues in your case and don’t waste time and valuable real estate discussing esoteric points of law that have little chance of obtaining the desired result.
#2 - The Remix Brief
This brief appears when an attorney procrastinates to the point that the filing deadline is imminent, and decides to just convert trial memoranda into a brief. Besides the obvious observation that merely recycling already rejected arguments is generally poor strategy, this tactic ignores the differences between appellate and trial advocacy. The way arguments are presented to a trial court differs from the way they are presented to an appellate court. This is especially so of “jury arguments,” which are generally ineffective on an appeal. Good legal writing considers the audience and tailors the presentation to that audience. The same way that reading an appellate brief as a closing argument would be a terrible choice, so, too, is repackaging trial arguments to an appellate panel and hoping they fair better the second go-around. Make sure you take the time to do more than just rehash your trial arguments, and carefully tailor the contentions to your new audience.
#3 - The Frankenstein Brief
This monster raises its head when an attorney attempts to cobble together a brief by cutting and pasting from various other documents, including PDF files. The result is a stitched-together document that lacks cohesion and structure. Numerous “cut and paste” errors appear, such as subject-verb agreement, misidentified courts, inconsistent naming conventions for parties and formatting problems. Indeed, attorneys often unwittingly manufacture formatting problems in their document when some code or electronic command is inadvertently picked up and copied into the new document. These hard-to-correct formatting errors transform what was intended as a timesaving shortcut into hours of struggling to properly format the new document. This causes numerous distracting errors that divert the reader’s attention from the arguments.
Whenever you cut and paste, you need to ensure that sufficient time remains to carefully review the brief and eliminate these pitfalls.
#4 - The Too-Many-Cooks Brief
This brief appears when multiple lawyers collaborate on a brief, with each attorney responsible for one or more sections. Division of labor is a great way to tackle a difficult multi-issue appeal and to maximize the time you have by preparing multiple sections at once. The only caveat is that you need to leave sufficient time to harmonize all of the sections into one coherent document. Otherwise, you end up with parties and other players being identified by different names in different sections of the brief, crude transitions from section-to-section because writing styles clash, a lack of uniform citation because the same cases cited in different sections revert back-and-forth from short form to full form and other integration problems. In cases of too many cooks, you must have a master chef to unify the various sections and ensure that theme, style and naming conventions remain consistent.
#5 - The Un-Brief
The “un-brief” results from the failure to leave sufficient time to edit out unnecessary verbiage and focus and sharpen the arguments. The result is a wordy, rambling document that lacks focus and clarity and is filled with run-on sentences. The length and lack of focus makes the “un-brief” hard to read and distracts the reader from the arguments.
It is called a “brief” for a reason! Take the time to be concise and avoid repetition. Appellate judges dislike unnecessarily long briefs!
We hope you find the above guidelines useful. Should you require assistance with the editing stage, proofreading or writing of your brief, CP Legal Research Group is here to help.
This article was published on July 30, 2014 in The Recorder, California's leading legal news and analysis publication. You can access this article here: The Five Types of Appellate Briefs You Don't Want to Write.
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