If It Ain't Clear, It Ain't There!

Suppose the following lead sentences appear in the statement of facts of an appellate brief. What's wrong with them?

"On July 28, 2014, the trial court found for Mega Big Corporation (hereafter "MGC"), which was incorporated on May 5, 1995, and against Mundy Tools, Inc. (hereafter "MTI"), which was incorporated on August 16, 1987, after it short-sold its competitor's stock. The trial court erred, because the short sale did not violate NYSE Rule 4.06 or SEC Reg. 1057."

An appellate court Justice who reads this probably thinks.

1) "If this brief keeps referring to MGC and MTI, I'll never keep them straight. Why not just 'Mega' and 'Mundy'? I can remember those names."

2) "I'm a former DA. I've never handled a securities case. I don't know what 'NYSE' and 'SEC' mean. And what the hell is a 'short sale'?"

3) "Am I supposed to remember the dates? Are they relevant to the appeal?"

4) "Who does 'it' and 'its' refer to"? And who is 'its competitor'?

5) "No point in reading any further. I give up. Maybe I should look at the Respondent's Brief to find out what's going on."

If your writing isn't clear, your brief might be worthless. Appellate Justices and law clerks are busy. They do not want to - and won't - take the time to decipher and untangle ambiguous phrases and complex sentences. In fact, they've been known to put aside an unclear brief and turn to the opponent's brief to find out what happened and what the issues are.

Try describing a recent baseball game to an Englishman. If you pepper your explanation with "homers", "double plays", and "strike outs", you'll get a blank stare. He doesn't know the game, so he doesn't know the language of the game. Same thing will happen when he tells you how England beat Australia in a test cricket match. Each of you grew up immersed in the argot of your national sport, and each unconsciously assumes that the listener knows what he knows. Both of you are wrong. You both need to explain the basics.

Same with an appellate court. Put Yourself In The Shoes of the Decider. You know the case like the back of your hand. Maybe you were the trial attorney. Even if you weren't, you've read the record carefully and you've lived with this case for months, if not years. You know the special language of the parties, the intricacies of their business, the names of the people and institutions involved. You know these things, but The Decider might know none of them when she picks up your Opening Brief. She doesn't know the game, so she doesn't know the language of the game.

I've handled appeals ranging from accounting issues, used car sales, medical malpractice - all the way to ballet. Every time, I force myself to step back and think: "I knew nothing about this topic when I started. The Justices will probably know just as little. I need to remember that with every word I write!"

Some tips:

Watch out for assumptions you unconsciously make because you know the case, the record, and the industry in which the dispute arises so well. The Decider can easily become confused with frequent use of unfamiliar names, words, and acronyms. If you need to include argot peculiar to an industry (construction, golf, police investigation, etc.), at least explain what the words and phrases mean. If a doctor testified that "the plaintiff suffered a contusion to the cartilage of the tibia," explain this in layman's language: "the plaintiff bruised his knee".

Keep your sentences short. If you need a literary model, pick Hemingway - not Faulkner or Joyce.

This is not the place to show off your great vocabulary. The reader might not want to take the time to look up a novel word. So stick with simple, familiar words.

Watch out for pronouns. If a prior sentence does not make it crystal clear who "he" or "she" refers to, use the name - even if you just used it. Not what your high school English teacher taught you, but here your goal is clarity, not beauty.
Example: What's wrong with this sentence? "After Smith ran his car into Brown's car, he hit a tree." If both Smith and Brown are male, who hit the tree? Maybe the reader could figure it out from the context - other parts of the story. But why make the reader work? If Brown hit the tree, just say "Brown hit a tree."

Do not use ambiguous words. What's wrong with this sentence? "The Commission may adopt a new regulation." Did the writer mean that the Commission is authorized by law to adopt a new regulation? Or did the writer intend to say that the Commission might in the future adopt a new regulation. Either reading is reasonable, because the word "may" could mean either one. The word is ambiguous. So don't use it. If you mean to say that the Commission is authorized, just say that. If you mean to say what the Commission might do in the future, say "The Commission might adopt a new regulation.

Keep reminding the reader how what he or she is reading is relevant to your effort to get the trial court judgment affirmed or reversed. It's OK to repeat yourself in the service of clarity.

My overall goal is to let my reader to read every part of my entire brief only once - straight through. I don't want the reader to have to go back and re-read a sentence or a paragraph - or even a word.

If it ain't clear, it ain't there.

by M.A.T. Legal Director Myron Moskovitz