WORD COUNTS
When I receive an Appellant’s Opening Brief or Respondent’s Brief from my opponent, I print it out. Then I close my eyes and hold it in my hand, feeling its weight. Then I ask myself: “How many words?” The wheels of my brain turn for a few seconds, and then I proclaim the answer: “Around 13,990 words.” Then I turn to the last page of the brief, the Certificate of Word Count. Bingo! The number is almost always within 4 or 5 words of my guesstimate.
Remarkable! I must be some kind of idiot savant, right? With this rare talent, why am I wasting my time handling appeals when I could go to county fairs and guess the number of jelly beans in a large jar—and clean up?
No, my secret is rather simple. You see, both California and the Ninth Circuit limit these briefs to 14,000 words, unless you get permission to file an oversized brief. And most attorneys think like this: “The more words I write, the better my chance of winning the appeal. So I’m going to use every word the court allows.”
In practice, this means they start out by writing without stopping, going well past the 14,000-word limit. They stop only when they run out of more cases to cite, more ways to say the same thing, more weak arguments to include, more footnotes to drop, etc.
Then they cut. A painful process, choosing which precious gems to delete. Case citations, footnotes, even entire paragraphs or subsections—all fodder for the snip. It stops when they hit 13,999—or, if that’s in the middle of a sentence, maybe a couple of words fewer. Ergo, my guess usually comes close to the mark.
I wonder what they think when they get one of my briefs. You won’t see any 13,990s in my word counts. Indeed, I rarely go over 10,000 words, and often I come in at closer to 5,000. My opponents probably think, “Moskovitz must be lazy or rushed. How can you do the best job for your client if you don’t use all the words the court allows you to use?”
No, I’m not lazy. And yes, sometimes I’m busy working on several appeals, but that never stops me from doing the best job I can on each one.
My word count is smaller than theirs because my whole approach to brief-writing is different.
I start by deciding what I need to win the appeal: the key facts and the strongest arguments—both showing the justice of my cause. I build my story around those key facts, in my Statement of Facts. I build my arguments around the justice of my case—and include some law that supports my justice arguments.
Then I stop. I’m done. If I were to add anything, it would not further my goal of winning. In fact, it would reduce my chance of winning. Additional b.s. would distract the judge from the power of my key facts and justice arguments. Including weak arguments would undermine my credibility, and making the judge read superfluous verbiage would just annoy her.
Many lawyers believe that “Weight is Great!” The more words they say, the better chance they have to win. So they load up their briefs with irrelevant facts, unnecessary cases, and blah, blah, blah. Ask any appellate justice his or her main gripe about briefs, and the answer you will invariably hear is “They are too long.” When pressed, they will admit that their concern is not raw page length, but failure to keep the focus on the heart of the case. A 20-page brief can be too long, while a 50-page brief can be just right. It depends on the issues and how they are argued.
A lawyer once gave me his 20,000-word draft brief to review. “Help me cut it down to the 14,000-word limit,” he said. I edited it and returned it to him. He read it and said, “It’s only 9,000 words! You wasted 5,000 words of my argument!” I told him: “Wasted? What’s your goal? To fill up the brief with all the words allowed by the rule—or to win the appeal? You have some good arguments, but it was hard to see them buried in those 5,000 words of fluff. Now you can see them better.” He grumbled, but filed my revised draft. We won the appeal.
Keep it simple. Most sentences should be fairly short. Each paragraph should be short, seldom more than three or four sentences. Each section of your brief should be fairly short, not exceeding five or six pages, under a separate subheading. If it’s longer, find a way to break it up into logical subsections, each with a subheading that guides the judge.
Every fact, every case, every word, and every punctuation markhas to fight its way into my brief. I ask each one, “What can you contribute to my chance for victory on appeal?” If it doesn’t give me a good answer, out it goes.
While I write, I edit. I cut large sections only rarely—when I decide that what it says is simply wrong, or too vulnerable to a counter-attack. But I constantly trim my drafts. I look for sentences to shorten, words to cut out, and even words to replace with words containing fewer syllables. If I wrote “each and every case is distinguishable,” I would cut either the “each” or the “every.” Including both adds nothing, so it distracts from the flow of my ideas—only a tiny bit, but to me, every little bit matters.
Trim, trim, trim. I want my key facts and justice arguments to shine, without a single thread of fluff to detract the reader from seeing the justice of my cause.
I do a lot of consulting, reviewing draft appellate briefs prepared by other lawyers. I see a lot of fluff in these drafts. Here are some common types:
Dates: Lawyers include dates for everything, usually adding “on or about”—just in case they are off by a day. Most dates are useless clutter. State what happened chronologically, but omit exact dates unless they really matter. Instead, just say, “next summer” or “a few weeks later.”
Case discussion: Despite what you were taught in law school, appellate judges view very few cases as “binding” on them. They don’t blindly “follow the law”—they make it. You win by showing them the justice of your cause, with facts and policy arguments. Toss in a few cases to reassure them that they won’t be lone rangers if they rule for you, but don’t expect page after page of case dissection to turn them around if you haven’t convinced them—with facts and policy—to want to rule for you.
If you have trouble keeping your briefs concise, here’s an exercise you might try: write a Two-Page Argument. Assume that, after the judge reads your Statement of Facts, he will read only your Two-Page Argument, and you must convince him now or never. You get only two pages, so you’d better state your best arguments in as few words as possible.
Show your Statement of Facts and Two-Page Argument to a friend. Ask if she is persuaded. If not, don’t try to persuade her orally, and don’t “explain” something she didn’t understand. If the judge isn’t persuaded by your brief, you won’t be in his chambers to hear his gripes and talk him out of it. And you won’t be there to clarify anything your brief failed to make clear. Your brief has to do the job—all by itself. Simply ask your friend why she is not persuaded, then fix the brief to deal with it.
After a bit of practice forcing yourself to pare things down, your briefs should improve. And the Two-Page Argument might serve as a pretty good Summary of Argument to include in your brief, right after the Statement of Facts.