Legal Writing: Is Shorter Really Better?

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--

• "First Drafts Made Easy, "IBJ 6/03.
• "Five Steps Towards Persuasive Writing," IBJ 6/98.
• "Improve Your Legal Writing With Five Simple Rules," IBJ 2/97.

Comments

[R. David Donoghue]

I agree that lawyers tend toward long briefs, partly out of a desire to make sure they get everything in and partly because of inefficient/poor writing (or perhaps to save their clients the editing costs). I clerked for a judge who believed that only the rarest set of ideas could not be expressed in 25 pages or less. My experience has been that he was correct, except that he could have gone with 20 pages or less. And I think judges and their clerks appreciate short, well-crafted briefs much more than long briefs that might feel more important.

[Sue Liemer]

I'm a legal writing professor. When my students are learning to write appellate briefs, I show them one I wrote in practice that was 12 pages long. I purposely use this one as an example, because opposing counsel used the entire 35 pages allowed by the court to make his arguments. I knew as soon as I saw that he took an entire page just to identify the two parties that I was going to win. Some students get the point.

[Derek Jones]

You have some good points there. I vividly remember drafting an appellate brief for a partner who insisted on butchering the brief by adding in a bunch of weak material because he was afraid of dropping any arguments on appeal. I'm a happy solo practitioner now. :-)

I would also advise people to be brutal when reviewing their writing. Find the harshest critic you can and tell them to go nuts. The only way you will improve is by seeing what you are doing wrong.

[Justinian Lane]

In my limited experience, I've found that the longer an attorney has been practicing law, the longer his or her briefs will be. It's encouraging to know that law professors are encouraging brevity.

I'm a big fan of Bryan Garner's books on legal writing. It was he who first introduced me to the famous quote from Blaise Pascal: "I have only made this letter rather long because I have not had time to make it shorter."

[Solomon Grundy]

The managing partner at my firm writes terrible, long, ridiculous briefs (and adds numerous irrelevant footnotes (as if a footnote is ever relevant!)). Any brief I turn into him is butchered into incomprehensible gibberish. The problem is that other partners and associates at the firm think this means he has amazing "legal ability" and brains. The partner takes great pride in his writing and position at the firm as the "resident genius". Fortunately, some of the younger associates who happened to go to good law schools know better.

P.S. I am a huge fan of Bryan Garner and recommend his books to anyone who wants to become a good legal writer.

[John Davidson]

there is ample psychological evidence that briefs should be much longer, but with citations, not words. If there are 50 cases that support a point, the maximum persuasive effect is to cite all 50 cases.

[Adam]

I think that attorneys also write long briefs because they're typically cautious people. They want to cover every base and are afraid to leave something out. Good tips for cutting things down here though. Thanks.

[David Barker]

A legal writing style that is concise and to the point can often be the best way to convey your message.