Monday, March 28, 2016

ARTICLE: Brief Rewriting Tips for the Young (or Any) Lawyer

The below article of mine appeared in last week's March 17, 2016 edition of the Legal Intelligencer and is reprinted here with permission.  All rights reserved.

Brief Rewriting Tips for the Young (or Any) Lawyer


Daniel E. Cummins, Esquire
The Legal Intelligencer

March 17, 2016

The use of simple words, short ­sentences, and narrow paragraphs will render your work product clear and concise. Pointed sentences composed of tight words will keep a grasp on the reader, allowing their minds to flow continuously through your written argument in a focused fashion.

A long sentence that goes on and on and moves from idea to idea with words and notions will surely lose the reader at midpoint and make that reader then have to go back and re-read the sentence more than once in order to understand what is being conveyed, thereby puzzling the reader and possibly making him or her lose interest in reading the rest of what you have written because the reader has forgotten what point the sentence is attempting to convey in the first place about long sentences. See?

Whenever possible, sentences should ­instead be limited to the conveyance of one idea. Where two or more ideas are put forth in a single sentence, see if that sentence can be broken into two.

With paragraphs, every attempt should be made to keep your paragraphs limited to one main idea. This main idea of the paragraph should be emphasized in a topic sentence written in an active voice, (i.e., place the subject before the verb).

Also, keeping paragraphs to five ­sentences or less will also make your brief more pleasing to the reader's eye. Readers coming to a page in your brief that has words broken down into only two paragraphs are likely going to sigh before attempting to wade through such verbosity.

And remember, there is no rule against utilizing a one-sentence paragraph to ­emphasize an important point.

Avoid Redundant Use of Words

The redundant use of the same words can be annoying to a reader. Wherever possible, seek out and utilize a synonym of the repeated word, first making sure that the meaning of the alternate word is appropriate.

The exception to this rule in brief-writing is that the terms "plaintiff" and "defendant" should be repeatedly used so as to keep clear to whom the writer is referring in any given sentence. These terms should even be used on appeal in the place of "appellant" or "appellee" for clarity's sake.

In fact, Pennsylvania Rule of Appellate Procedure 2131 cautions the appellate brief writer to keep the use of the terms "appellant" and "appellee" to a minimum. When using such terms, perhaps the clearer way would be to utilize "appellant-defendant" the first time that party is identified and then sticking with "defendant" throughout the remainder of the brief.

Be Redundant in Your Position

While redundancy in word use is to be avoided, every effort should be made to repeatedly state the validity of your legal ­position supporting the relief requested.

The first and last sentence of each ­subsection of your brief should contain the legal conclusion that supports your ­client's position. Brief writers will often start with a statement of the applicable rule of law but never fully apply the facts of the matter to that law. Or they will apply the facts to the law but not write that next, most important, concluding sentence tying it all together by stating that the law supports the client's position such that the ­relief requested should be granted.

So be sure to end each section of the brief with a sentence set forth in an active voice stating that this part of your legal argument should be accepted as valid by the court under the law provided. Repeatedly end each section of the brief with a statement that the motion at issue should therefore be granted or denied, whatever the case may be.

Be Conversational

Legal writing courses in law school wrongfully kill creativity in brief writing in favor of arid, brittle, crisp statements of the law as applied to colorless adjective-free facts. The result is lifeless law review writing, and who seeks out law review articles to read after they are written? No one.

So be conversational in your writing and bring the story of your case to life within your argument with descriptive but concise words and sentences. Let your recitation of the facts flow as if you are relaying the story of the case to a friend. Leave out slang words, but don't be overly formal either. Use your natural speaking language in your writing.

Robert Frost has been quoted as writing or saying, "No tears in the writer, no tears in the reader. No surprise in the writer, no surprise in the reader."

Similarly, if there is no feeling conveyed in the writing of the brief in the form of colorfully vigorous and compelling statements that the law and facts in support of the ­position of your client, then there is going to be no similar feeling born in the reader.

Being conversational includes being polite. Know your place and never tell a judge that he or she "shall" or "must" accept your position. Rather, soften such statements by instead writing that "it is respectfully submitted" that the rule of law requires or mandates the result requested.

Question Presented

A lot of attorneys glaze over the "Question Presented" section of a brief and, in doing so, miss another opportunity for the court to read their client's argument as set forth in a concise and forceful format that foreshadows the conclusion desired.

It is a waste to simply state in the "Question Presented" that the motion at issue should be granted or denied.

Always begin your "Question Presented" with a phrasing that suggests your position should carry the day. For example, for the movant, the "Question Presented" should be positively phrased as, "Whether the motion of the defendant, John Smith, to compel should be granted where..." and vice versa.

Then, as concisely as possible, include in the "Question Presented" the pertinent facts of your case as applied to the rule of law in a manner that favors your position. In the end, the "Question Presented" should be a detailed statement of your legal position in a question format that asks whether your position should be accepted by the court. As noted below, the language in your "Question Presented" and conclusion sections should mirror one another as concise, but not identical, affirmations of your ­client's position.

Cite the Law

Whenever you cite a legal principle of law, lend it credence by adding a citation to a case rule or statute after the end of the sentence. Without citations, your stated legal principles will appear to be your philosophy of the law and the reader knows that you are no philosopher of the law.

Lawyers are trained to cite everything. Judges are lawyers. For lawyers, a citation is like whipped cream on an ice cream sundae—you don't really take notice of it when it is there, but you sure do know and protest when it is missing.

The absence of a citation for a stated position raises a belief in the reader that there must be no citations supporting the position taken or that the lawyer was too lazy to look one up. Either way, the instantaneous conclusion of the reader is that they should therefore not accept the argument put forth as valid or worth consideration. Avoid this by listing citations wherever possible.

Although not required, it may be a good idea to identify in the citation the judge who wrote the decision cited. Judges know each other from traveling in the same circles and an opinion written by one judge may carry weight with your judge.

Use Conclusion Section for More than a Conclusion

Some attorneys may have a ­misperception that the final conclusion section of a brief can only be utilized for a one-line statement of the relief requested, i.e., "For the above-stated reasons, it is respectfully requested that the plaintiff's motion to for summary judgment be granted."

Surely the last sentence of the brief should be a respectful request for the granting of the relief requested, but there is no rule stating that one is precluded from utilizing the conclusion of a brief as one last great opportunity to encapsulate your client's legal argument. An excellent way to accomplish is to recast your "Question Presented" as a strong final statement that the relief requested should be allowed by the court.

Focused Edits

One can become sick of looking at a written product after a few edits and thereby lose focus. One way to counter this ­phenomenon is to conduct focused edits of the document.

Do a focused edit of only looking at the citations for proper format and punctuation. Do an edit focused on keeping sentences short and tight. Do another edit focused only on making sure you have good transitions from one paragraph to the next and from one section of the brief to the next. Another edit of your brief can be completed with an eye centered on ensuring that each section of your brief begins and ends with a concise statement of the legal relief requested.

At another run-through, start by editing a section near the end of the brief and then going back to the beginning in order to have fresh eyes on the latter sections of a lengthy brief.

It can be safely said that no great brief was ever written on a first draft. And so as you work on crafting the best-written product you can produce to which your paying client is entitled, keep in mind the words of former U.S. Supreme Court Justice Louis Brandeis: "There is no great writing, only great rewriting."

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at

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