|May 21, 2014|
Previously published on May 2014
A California appellate justice recently told me, “I’ve never read a brief I can’t put down.” He was not being snarky. He strongly believed it was possible to write a page-turner of a legal brief, and dreamed of the day when he would read one. Combining his thoughts on the subject with my own experience and the comments of other justices, here is what it takes:
Tell a story. Judges are human, and humans love stories. If your story is one of injustice that allows the court to write a fair ending in your favor, all the better.
Make the reader feel smart, not dumb. Everything should flow from general to specific, from well-known principles to your propositions, in smooth lines. No ten-dollar words, inside-jargon, or complex sentences.
Provide the legal tools to reach your result. Appellate courts generally aim to “get it right.” Help them step-by-step. No shortcuts.
Disappear. A great writer fades away, leaving only a narrative that sounds honest and inevitable. If you can make your conclusion arise in the judges’ own minds without insistence or fanfare, you have truly persuaded.
> The practical message: Your chance to persuade an appellate court really boils down to your first brief - especially in California, where cases are overwhelmingly decided before oral argument. Make that brief memorable.