You've heard the conventional wisdom. When writing a brief, make it short, because shorter is better.
But is it really? Based on the briefs I regularly see in my own practice, many lawyers don't seem to think so. Even in courts that have imposed page limits on briefs, lawyers routinely include motions with their overlong opuses seeking relief from the court's guidelines.
What are the reasons for long briefs? Since I too have struggled with page limits, both as a defense lawyer and a plaintiffs' lawyer, I have a few ideas.
- A short brief means an unimportant brief. There is a sense that if one files a short brief, the court may conclude that the motion is not important or that the lawyer filing the brief doesn't feel strongly about it. Therefore, make it longer.
- If everything's not included, something might be waived. Another reason for long briefs stems from a belief that some hypothetical appellate court might conclude in the future that an argument was waived because it wasn't presented to the trial court. Therefore, make it longer.
- If every potential writer doesn't get his say, someone might have his feelings hurt. A third reason for overlong briefs is the type of law-firm management that allows numerous lawyers to get their hands on a brief before it's filed. Though it might be perfect when the associate drafts it, it gets bloated when supervising lawyers add this point and that point--points which the associate isn't expected to delete, or even revise, before filing. Brief-writing by committee never seems to work.
A fourth reason for long briefs is simply that writing short briefs is hard. Assuming you can get past all the other problems--that is, that you can convince yourself that the court will welcome a shorter brief, that it doesn't matter if poor arguments are waived, and that the fourth partner's five nonsensical paragraphs really should be deleted--then you're still left with all the other problems that face any writer trying to boil more down to less.
Unfortunately, there's no easy answer to this problem. But I do have some tips, gathered from my own years of writing briefs--
- You've heard a thousand times to "cut needless words." This is good advice, but you should think bigger, at least at first: cut needless pages.
- Begin by cutting any arguments that aren't strictly necessary. Next, begin to rewrite with a view to cutting out all the first-draft material that was necessary for warming up your mind and getting to the point where you knew what you really wanted to say. Now that you've said it, the warming-up is superfluous. Find your most important paragraphs, then read backwards from there: can any of the warming-up sentences or paragraphs be deleted without damaging your argument? If so, delete them. Your brief will be better for it.
- Finally, see if there are any redundancies. If so, reorganize your brief in a way that allows you to omit them. For example, if there are legal principles or factual explanations that apply to more than a single argument, organize your brief in a way that they only have to be stated once. Repeating factual and legal arguments is probably the single biggest cause of bloated briefs.
In addition to these "micro" tips, keep in mind four "macro" ideas that might help you to approach your writing in a new way--
- Learn more about writing. Seek out books for writers--not legal writers, but any type of writer--and read them every now and then. If you develop a passion for writing, your writing will improve.
- Seek out models of good legal writing. Whenever you get your hands on a brief that you think is well-written, copy it and put it into a binder. Use this binder to see how other lawyers have put into practice the ideas about good writing that are expressed in the writing books you've been reading in your spare time.
- Find an editor. Anyone who can tell you where your writing breaks down or becomes confusing will be a help to you. Since even a general reader should be able to follow the outline of your argument, think about letting a paralegal or secretary do more than just proofread your writing, but also comment on its readability. A spouse or older child can do this too.
- Set your writing aside. Finally, get into the habit of finishing a writing assignment far enough in advance of the deadline that you can set it aside for at least two days, but preferably more, before returning to it for a final round of editing. Once you've been away from your brief long enough to forget the specific rhythms of your writing, you'll be able to read it with the "fresh eyes" necessary for making substantial and important revisions.
For still other writing tips, see these articles I've written for the Illinois Bar Journal, republished on my law firm's website--