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BRIEFS FOR THE BRIEF WRITER: Posner on prose: Oft-cited federal judge dispenses writing advice

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or dslomowitz@foslaw.com.

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or [email protected]

Formidable 7th Circuit Judge Richard Posner recently published in the winter edition of the legal journal “Green Bag” the delightfully readable first installment of a two-part article: What is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable.

The article’s second half describes what Judge Posner views as formal and substantive deficiencies in federal appellate decisions.

Some of Judge Posner’s criticisms concerning judicial procedures or decision-making apply only to the judiciary. Four of his criticisms, however, can be analogized to brief writing.

1. On citations, Judge Posner states, “At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish. … Yet no serious reader pays attention to citation format; all the reader cares about is that the citation enable him or her to find the cited material.”

I would not burn the Bluebook, but Judge Posner’s basic sentiment is true. Attorneys should spend less time on cross-citing and more on shepardizing or keyciting their citations to ensure that their cited cases are still good law.

2. On conciseness, Judge Posner states: “One might thing that even if the Bluebook has to remain untouchable — that is to the legal profession what the Rules of Golf are to golfers — judges and their clerks would endeavor to eliminate from their judicial opinions superfluous verbiage, which is experiencing a weed-like growth and tenacity.”

One of this column’s hallmarks is the persuasiveness of well-made arguments, using only the necessary language and without overblown adjectives. A brief’s 50-page limit does require 50 pages of words.

Seventh U.S. Circuit Court of Appeals Judge Richard Posner writes May 16 in his office at the Dirksen Federal Building in Chicago. (Staff photo by Kevin Harnack)

Seventh U.S. Circuit Court of Appeals Judge Richard Posner writes recently in his office at the Dirksen Federal Building in Chicago. (File photo by Kevin Harnack)

3. On avoiding redundancy, Judge Posner states: “Redundancy is a common form of superfluity in judicial opinions, as when the opinion states that ‘a question of fact (is) to be determined from the totality of all the circumstances. …’

“Apart from being crowded with superfluous flourishes, of which I’ve given just a few examples, appellate opinions tend to be overlong, crammed with irrelevant facts and repulsive legal jargon (‘subjective prong’ is one of my favorite examples of judicial illiteracy. …)”

Brief writers would be well-served to apply this criticism to their briefs. Wordiness often occurs when a brief writer does not have time, or does not bill out the time, to write and revise a series of brief drafts. However, the time spent in transforming an unwieldy document into a lean, persuasive and grammatically correct brief can come back to the client with an appellate victory.

Similarly, emphasis is one thing; brow-beating another. A properly organized, concisely written brief does not need to make the same statement or point again and again. Overkill may even work against the writer, turning off the court before it has read all of your arguments.

4. On eloquence, Judge Posner states: “My complaint is not that modern appellate opinions lack eloquence. They certainly do lack it. But eloquence is no longer a property of legal writing. … Clarity, not eloquence, is the only attainable, though not attained, literary goal of modern judicial writing, cultural changes having largely killed off the humanities.”

Well, fellow lawyers, Judge Posner has never been called “timid.”

Even so, Judge Posner has a point, which applies as readily to appellate briefs as to appellate decisions. Good briefs, by definition, are eloquent. Eloquence means “fluent or persuasive speaking or writing,” according to the Oxford American Dictionary.

Attorneys, like judges, are busy. Unlike judges, who don’t fill out time slips, attorneys can’t justify spending inordinate billable hours on one brief.

But eloquence — persuasiveness — doesn’t take days and days. It just takes a little thought of the story to be told; of the wrong to be averted or the right to be vindicated; and of the law, which can bring justice to your client.

One comment

  1. Judge Posner is one of the nicest people I’ve ever met.
    He is not only smart and famous. He’s kind to everybody, and he cares and respects the legal system.
    I believe he wrote about 40 books.
    I wish him and his family a great holiday and a happy new year in 2023!
    Linda Veerkamp-California
    PS I need an attorney, with federal court experience and Possibly, multi state experience. See MENN LAW FIRM vs Veerkamp. I had three attorneys that failed me and I was unable to obtain an attorney for the appeal so I did it myself and referenced the contract. The contract was two pages and couldn’t be clearer. The appellate court listed all the things I didn’t do correctly and did not even mention all my arguments regarding the contract, it’s clarity, the Wisconsin statutes stating all contingency agreements need to be in writing, especially when the attorney is the drafter, etc. etc. etc.
    The attorneys claimed the contract they wrote, was ambiguous (somewhat bizarre because if that were the case, they should’ve approached me to change it) The appellate court did not look at the four corners of the contract/contingency agreement. The judge was biased. He inserted himself in all six of my cases, and he knew my brother. His actions were not negligent. They were criminal, because he used his position as a judge.( both on and off the bench) To rule against me And denied me due process rights for no apparent reason.
    The judge took my past attorneys motion for sanctions out of the court record and then promised he would make a ruling on this motion for sanctions, but instead, he ended the lawsuit and ruled against me. I’m not so much upset with his ruling I’m upset that I was not allowed to even defend myself, Have a jury trial or even say anything when I’m being sued for over $100,000. I was not even served by the process server, which is my preferred opinion questions if this judge even had jurisdiction over my case because I’m from a different state and the controversies over 75,000. I Put the request in a motion to have the case heard in my domicile, but the attorneys just reduced their claim from 104,000 to 52,000. They attempted to try The lawsuit about five different ways which was not in their original complaint. I don’t know if they can do that. They also used an hourly agreement that they created and forged my name to, and when I asked the judge under discovery, if he would order them to give it to me so I could prove the forgery he said no. When I asked the judge in a motion to apply the arbitration clause in the contract. He said no it only would apply if I sued the attorneys. I read the arbitration clause to him, which said ” If the parties disagree with the fees, they both agreed to binding arbitration. The judge is court reporter Joan Biese completely changed what I had said in the transcript. However, I recorded this conversation and it proves that she falsified the transcript. I presented this to the state courts Director, Tom Shappa. He sent a letter back to me, stating that whatever the court reporter says goes and refused to even listen to the tape I was going to send him.
    It didn’t help that District 3 of the appellate court handling my appeal was recruiting Judge Gregory Gill who held his campaign on Facebook, he eventually was named as the new judge in district 3 of Wisconsin’s Court Of Appeals. The original case was a well Kentucky is where I was named the sole heir. It was a $6 million estate which explains the hanky-panky.

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