Most lawyers’ writing – including mine, for the first draft or two – is full of junk. Much like your garage, or that closet you dread opening, briefs get crammed with duplicates, decorations, and miscellaneous stuff that you do not really need, and would be better off without. Wouldn’t it feel great if you (or someone you trust) cleared it out for you? You feel like you can breathe again, as you behold clean, crisp shelves (pages) with short and smartly organized stacks (paragraphs). Nothing falling out or piled haphazardly around.
Appellate courts love that too. So here is a list of items that almost always constitute “junk,” which you or your friendly editing partner should toss if you want a sparkling clean and inviting brief:
- Adverbs. No more than a couple are justifiable. They indulge the writer and almost never enlighten the reader. “Clearly” is only the most notorious offender, so sharpen your rake! How about “grossly,” “repeatedly,” and other detritus?
- Footnotes. Reserve them only for marginal points that you can afford to have the court skip (because many justices and clerks do). Footnotes distract from your core argument, and worse, are often a crutch for weak organization.
- Repetition. Most drafts say everything twice, and often more. Clear it out!
- Passive voice. Rather than saying a ruling is “unchallenged on appeal,” try: “This Court presumes the ruling was correct, given the Opening Brief’s silence on it.” Instead of “it has long been established …,” try “this state’s courts have long held …,” or even better (if true): “this Court has long held.” Once in awhile, you want to obscure who took an action or made a statement, but most of the time, passive voice drains a brief’s momentum, while clear subject-verb forms energize a brief and help persuade the reader.
► The practical message: A clean sweep of every draft brief will make it much more accessible to the people who did not write it, and who don’t know your case, but will decide the outcome. Clear their path with these specific tools.