Timing is crucial in bluegrass music, tennis, and sex. Brief-writing? Same thing.
I see many briefs that discuss things too early. For example, opening briefs include lengthy “Introductions” that argue the case – before the judge knows the facts. What’s wrong with this?
Let’s apply my Golden Rule of Advocacy: “put yourself in the shoes of the decider.” So assume that you are the decider. Some lawyer you’ve never seen before comes up to you to discuss a case you’ve never heard of. He says, “Judge, you’ve got to reverse the judgment against my client. The trial judge misunderstood several reported cases. [He then discusses 3 or 4 cases.] And there are some policy reasons why he was wrong. [Ten more minutes of argument.]”
After silently listening to 30 minutes of this, how would you react? Would you say, “You’re right. I’m persuaded. I’ll reverse the judgment.” Or would you say, “Sorry, but I didn’t understand a word you said. You seem to assume that I already know something about this case. I don’t. So would you mind telling me the facts before you start arguing why the trial judge got it wrong?”
The lawyer just wasted 30 minutes of your time – annoying the person he was trying to persuade, before he had any real chance of persuading you.
That’s what most “Introductions” do. “But”, you respond, “if I explain all the facts in my Introduction, it will be even longer – 10 pages instead of 5. That’s too long.”
You’re right. 10 is too long. But so is 5. An effective Introduction should be no more than 2 or 3 pages.
Maybe it’s time for a bit of introspection. Ask yourself: why do you want to include an Introduction? The rules don’t require one. Are you doing it simply because everyone else includes one? Not a good reason, because almost everyone else loses. (Appellate courts reverse civil judgments less than 20% of the time.)
Don’t include anything in your brief unless you’ve carefully thought about whether it advances your goal: to win the appeal.
In my opening briefs, I write one of two types of Introduction.
The first type includes no argument. It’s too early for that. This Introduction is very short, simply telling the judge what the issues are, so when the judge reads what comes next – the Statement of Facts – she will see the relevance of the facts I describe. This Introduction helps advance the goal of victory by making my Statement of Facts more persuasive.
The second type of Introduction is a mini-brief – it summarizes the facts, the law, and the policy reasons why reversal is the only just result. This Introduction advances the goal of victory by winning the appeal before the judge even reads the rest of the brief!
Rather ambitious, I admit, but only rarely do I use this second type. Usually, the facts are too long and complex for me to squeeze them – along with a short summary of the law and policy arguments – into the 2-3 pages I allow myself for an Introduction. And I won’t make the mistake of condensing the facts by omitting facts against me. If I do that, my opponent will clobber me in his respondent’s brief. But occasionally the facts are simple and undisputed, so this second type works.
Lawyers often ask me to review their draft briefs. Here’s what I sometimes see.
The brief is 40 pages long. I read as if I were the decider, asking myself as I go along if it persuades me. I start at the beginning. By page 10, I’m not persuaded. Nor at pages 20 or 30. I had an open mind when I started, but it’s beginning to close. But at page 36, buried down at the bottom of the page, there’s an argument I hadn’t seen before. It’s a good one – possibly a winner.
But why did the lawyer wait until the brief was almost done to include it?
I suspect the delay stemmed from the lawyer’s sense of order. “You’re supposed to present the Statement of Facts, then the Argument. And the sections of the Argument should be in the order the issues arose in the trial court. And each section should discuss the law before any policy argument. That’s what I learned in law school.”
You’re now in the real world, not law school. Judges are busy, and they are used to reading unpersuasive briefs. (That’s why they reverse in only 20% of appeals.) If they get to your page 30 without being persuaded, they won’t be in the mood to read your great argument on page 36 with an open heart or mind.
The lawyer is starting at the wrong end. The goal of the brief is not to present a case the way everyone else does, but to win. You win with your best argument, which is usually about justice: why it would be unfair to affirm. Make that argument early and often. Put it in your Introduction - if the case lends itself to my second type of Introduction. Be sure to put it in your Summary of Argument (between your Statement of Facts and your Argument). And in the Argument section, put it first – even if it seems out of chronological order.
Don’t be early, and don’t be late. Timing is everything.