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Friday, June 14, 2013

Your Skills: Writing a Brief--Lessons From Literature

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Tami Fisher, adjunct professor.

There is no secret to good appellate brief writing.

This article is reprinted with permission from the June 14, 2013 edition of the Recorder

by Tami Fisher

Which is to say: A brief is no different than any other form of writing. While there are plenty of bad briefs, there are just as many bad poems, novels, 'zines, catalogs, blog entries, white papers, screenplays and VCR manuals. All of these can be well-written, and many are. Your favorite book is treasured not just for its resonant subject, but for the prose style used to create its world. So, too, may you powerfully convey — through strong writing and a carefully placed em-dash — the moving (no matter how dry) story of your client. Like beloved works of literature, any subject matter, in a lesser author's hands, can be drivel.

So why do we treasure particular works of literature? For two reasons: We love the story, and we love how it is told. A good piece of writing must marry intriguing content with sophisticated presentation. As we learned on a dreary afternoon spent diagramming sentences in grammar school, style matters. It is no accident that one of the most important works of grammar — William Strunk Jr. and E.B. White's The Elements of Style — was co-written by a revered fiction author. Knowing and following the rules of grammar makes for crisp, clear, structured writing. (That devil on your shoulder insisting rules are made to be broken is not to be wholly ignored. But tame him; remind him that one can only break a rule after one has mastered it.)

Before you apply rules of style to your brief, of course, you must advocate. We are attorneys, after all, not novelists. But even in our advocacy we can learn from our literary forebears; I particularly prize Emily Dickinson's poem, "Tell All the Truth But Tell It Slant," for in eight lines Dickinson captures what it is to be an appellate practitioner.

When you lose yourself in a good book, you believe wholly in the world the author has created, no matter how outlandish. Novelists are lucky (says the appellate attorney) — the truth is the world they create. As lawyers, we are duty bound to zealously represent our clients, and bound also to truthfully represent the state of the law and facts to the court, no matter how those facts or guiding legal principles might harm our client's interests. How does a lawyer combine these sometimes competing obligations? By telling the truth, but telling it, as Dickinson instructs, slant.

In her poem, Dickinson claims that "success in circuit lies." She was not suggesting that federal court victory was at hand, but rather that leading one's listener to the truth along a winding rhetorical path could be sound strategy. A court would not view kindly a brief that fails to set forth critical, if negative, facts or law. But subtly revealing those negative facts or artfully distinguishing contrary authority, all while emphasizing positive facts or law, best protects your client's interests and permits you to maintain your duty to the court. Do not lie, but do not treat the truth as immutable.

Not all practitioners adopt her approach, of course. Indeed, an appellate brief that bluntly sets forth in its statement of facts all of the relevant details, negative and positive, will likely be received by a court as a neutral accounting. Some practitioners prefer this approach, and courts may perceive the attorney as credible for taking the risk of presenting facts without argumentation. But others prefer Dickinson's method of truth telling, using the appellate brief's statement of facts as the first — and most significant — opportunity to advocate.

Dickinson suggested "the truth must dazzle gradually" lest "every man be blind." Applying this concept to briefing, attorneys should take care to describe positive and negative facts differently, altering prose style, voice and sentence length to set off these distinct concepts. Positive facts may be highlighted by a short sentence containing a single, well-placed adjective, while negative facts may shelter behind the passive voice. An attorney cannot avoid telling the whole truth, but may describe that truth's components in distinct fashions. By so doing, the appellate practitioner gradually reveals the truth, in the light most flattering to the client.

While these concepts are far from concrete, they are easily clarified by way of example. Suppose that your client stands accused of attempted murder, and further suppose that small amounts of gunshot residue were found on her hands. You may state this fact exactly as it is set forth above. Or you may write, if true, that a "trace" or "negligible" amount of residue was found. Perhaps you could draft that sentence to follow one in which you describe how your client happened upon the crime scene, explaining that in her anguish she foolishly handled the weapon before calling for help. Or if your client is the state, you may wish to explain that the defendant was found at the crime scene, her fingerprints were discovered on the weapon, and later testing revealed that there was gunshot residue on her hands in a quantity consistent with her having fired the weapon earlier that day.

Tell the truth — lay out all of the facts, and all of the law — but tell it slant. Be artful in word choice, for every detail counts. Consider at the outset even small choices like what to name the parties — are they plaintiff and defendant, victim and prisoner, or Mr. Smith and Officer Jones? Judiciously use the passive voice to subtly downplay the negative, while preferring active voice generally, and especially in order to accentuate the positive. Let the truth of your client's story "dazzle gradually" by employing all of these techniques to highlight the positive attributes of your position, but remember to tell all the truth lest you lose credibility by failing to be forthright.

Sadly, advocating is not all there is to advocacy. Your case may be a slam dunk, but if you cannot present it clearly you have not advocated. Good appellate writing requires not just strong narrative skills, but also serious grammatical chops. Ernest Hemingway is not a respected novelist solely (or even primarily) for the content of his books; rather, he is best known for his writing style. Hemingway's novels are filled with brief sentences, each containing a single idea. Follow Hemingway's example. Draft short, declarative sentences whenever possible. Those sentences will, of necessity, be followed by lengthier ones, often containing dependent clauses. But when possible, return your writing to basics. Write short.

This same advice can be found throughout Strunk and White's classic, The Elements of Style. Like Hemingway, White is famous not just for penning childhood classics like Stuart Little and Charlotte's Web, but for "collaborating" with his departed teacher to transform Strunk's 43-page writing guide into one of the best-used style manuals. It is no coincidence that Strunk and White also instruct that good writing should be filled with positive language, active voice and clarity. Nestled with obvious admonitions like "omit needless words," Strunk and White's guide also instructs on proper use of serial commas, possessive apostrophes and dashes.

It is not critical that you recall while drafting every sentence of your brief the nuances of split infinitives and comma splices. A paragraph need not always consist of just five or eight sentences, or whatever magic number your primary school teacher required. But every appellate lawyer — indeed, any person who puts pen to paper or fingers to keyboard — should own at least one style manual. You may not know how many sentences must be in your paragraph, or whether the word "that" is a preposition, but you should be able to quickly discover the answer. Your brief, like your favorite novel, must follow a logical structure of the sort described by Strunk and White. We could not practice law without using the Bluebook or other citation guide, and neither should we draft briefs (nor any prose) without a style manual properly suited to the task.

No matter whether you are penning the next great American novel or your next great appellate brief, the story you tell will be better for the structure you give it, the grammar you impose and the advocacy choices you make. For it is not the idea in a vacuum that makes a story our favorite; any story in a lesser author's hands can be unreadable. Story is nothing without structure and style. The trick to good appellate brief writing, then, is to write well. And now you can.

Tami Fisher is a professor and associate director of legal writing at UC-Hastings, where she has taught appellate advocacy courses for six years. She is also an appellate practitioner and serves on the First District Appellate Project's panel of appointed appellate counsel. She worked for five years as a staff attorney for California Supreme Court Justices Carlos Moreno and Goodwin Liu.

The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at vgashpar@alm.com.

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