This isn’t a “how to” article, at least not directly. It has no specific tips for concise sentences or argumentative brief headings. That alone will make some readers very happy.
Instead, this is a rumination (don’t turn the page yet). It’s my attempt to answer a question that has nagged at me since I took on the role as the major brief writer for my firm so many years ago. Like most lawyers, I anticipated, correctly, that I would have to occasionally (or more) step out of my specialty and into other legal areas. That, however, was a daunting prospect, which generated the question– How do I, and by extension how do we, as lawyers, best adapt to perform legal tasks which do not come naturally?
I can knock out briefs like a pro. Research, write, revise, file. Move on to the next. On a good day, a brief that would take someone 10 hours to write can take me five, including finding that crucial “where is it” case. That’s a good thing, since right now I’m in the middle of a case for which a day writing “only” three or four briefs is a “good” day.
On the other hand, ask me to cross-examine a witness and I’m a goner. I visualize myself spending hours preparing, with lists of questions, only to forget to ask the most important question—the one in capital letters, X’d in red, all over my legal pad.
Let’s not even discuss tax issues.
So what gives? Why bring non-brief issues into a column about brief writing?
Because those relatively few lawyers whose specialty is brief writing are likely to already be using many of the tips contained in these columns. Because the practitioners to whom this column is primarily addressed are those for whom brief writing is the occasional, necessary hazard. And because brief writing may be to these lawyers what cross-examination and tax law are to me.
The question, nonetheless, remains—how can those lawyers to whom brief writing does not come naturally adapt when a brief is required? The answer, I believe, is contained in the question itself. The answer is to adapt. To apply all the skills, intrinsic to any legal specialty, to the brief writing task itself. Organization, diligence, and, especially, knowing the rules.
The rules, of course, will vary depending on whether one’s brief is to the Wisconsin circuit court or appellate court. Chapter 802, Wis. Stats. for dismissal and summary judgment motions, for example. Local county circuit rules often provide critical rules regarding brief length and contents. Circuit rules can be found on the State Bar website. The Wisconsin appellate rules are exceptionally specific as to the contents and requirements for appellants’, respondents’, and cross-respondents’ briefs and appendices. Chapters 808 and 809, Wis. Stats., and particularly Sec. 809.19, Wis. Stats’. brief requirements, are must reading for any appellate party. The federal district and circuit courts have corresponding trial and appellate rules, nationwide and per district or circuit. They are particularly detailed as to the required contents and formats for summary judgment submissions. As an example, see Eastern District Civil L.R. 56 on summary judgment motions.
Only after you know what must go into a brief, in how many pages, in what format, can you move to the more delicate task of turning your brief into a winning one. What’s the sense of slaving over argumentative language or standards of review, if your brief will be rejected because it’s too long, doesn’t attach the proper documents, or otherwise isn’t “right,” according to the court?
I realize that this discourse is far more general than a “how to” column normally reads. I also realize that briefs for many motions can be simple and short. But, for example, when faced with a complicated summary judgment motion (which, in the federal system, requires companion detailed statements of undisputed fact), it is helpful to remember how extensively the motion/briefing rules will frame a brief’s content. The nuances of briefing are important, but they are just that—nuances.
So, if you’re relatively new to brief writing, or you’re facing an unusually complex brief, go back to basics. Read the rules. Create a compliant brief structure. Then go ahead and write a draft. Use your revision time to fine tune your arguments, your headings, and your case.
As for me, my litigator has asked me to draft questions for his cross-examination of witnesses in a big trial (no kidding). Wish me luck.