Confidential Chat on the Craft of Briefing
Levitan, Mortimer, Journal of Appellate Practice and Process
This chat on the craft of briefing is intended solely for discreet lawyers who invariably respect confidences. It was prepared for publication only after repeated assurances by the editors that judges never read law reviews. Whether this is good or bad, true or false, judges will benefit most from this article if they remain unaware of its contents.
What briefs need most in this world is readability. (1) Briefs should also be convincing, if possible, but unless they are read by somebody, they won't convince anybody of anything--except their writers, of course. Briefs have a knack of convincing their writers with the utmost of ease. Cases are not won by persuading one's self of the soundness of an argument; they are won by convincing judges--not courts, not benches, not institutions, but lawyers who have been elevated to the judiciary.
Courts cannot read. With perseverance human beings can acquire the art of reading, but institutions, organizations, divisions of government can never be endowed with that art--not even by an act of Congress. Judges, who are human beings by nature, lawyers by profession and judges by fortuity, can read and frequently do, but with all of the fascinating reading material on earth, why should they squander their reading time on briefs that are dull, obfuscated, verbose, and downright uninteresting besides? The fact that so many briefs get read is a tribute to pertinacious adherence to judicial sense of duty. When a brief is filed, it is not fed into a judicial machine, which comprehends, weighs, and evaluates automatically, and then after whirling of wheels and flashing of lights--and occasionally prolonged periods of inactivity--ejects the correct answer. When a brief is filed, it is for consideration by a man (or, possibly, a woman); which means that briefs must be addressed, not only to a human intelligence, but also to human nature.
No brief should ever be written without some definite purpose in mind. Neither convention nor addiction is justification for a brief: the conformist should rebel, and the brief-writing addict should seek psychiatric aid. There are a variety of purposes--some commendable, some reprehensible--for writing briefs. It is reprehensible, for instance, to write a brief primarily to express an uncomplimentary opinion of one's adversary; it is commendatory to write a brief for the purpose of advising the court; it is neither reprehensible nor commendatory to write a brief because the client insists--merely good business. The most exemplary purpose of a brief is to assist the court in deciding the controversy either for or against one's client, but preferably in the client's favor.
The lawyer who writes a brief without a preliminary outline would if he were a carpenter, build an edifice without a plan. True, by persistently pounding away eventually a written argument might emerge, and a shelter might evolve, but the finished product would probably be bizarre rather than artistic. Briefs dictated without preliminary outlines tend to be garrulous monologues in which the lawyer strives to ascertain the determinative issues by the "talking" method, rather than the "thinking and investigating" method. The most meritorious aspect of these briefs is that they do come to an end eventually; their worst aspect is that they end where they should have started. While time spent in briefing may be wasted, time spent in outlining a brief is never wasted, for a skillfully prepared outline invariably engenders a shorter, clearer, better brief.
The effective production of a brief depends, not only on a knowledge of the law and facts involved, but also on familiarity with the background, disposition, and intellectual endowments of the judge. Different types of judges require different types of briefs; which is merely another way of saying that a brief to be effective must be written with the reader in mind. A short story intended for readers of True Confessions must be written differently from one intended for readers of Harper's Magazine. …