November 2008

Writing Tips for More Effective Briefing and Motion Practice

by Shelley Szambelan

Our job as attorneys requires that we argue our client's position persuasively. In order to do that job well, it goes without saying that one should effectively convey the facts, law, and desired result upon which that position is based. Generally, we do it in two ways — oral presentation and the written word. What we say and how we say it directly affects how well we convey our message and whether it ultimately persuades the decision-maker. This article focuses on how lawyers may more effectively convey their respective positions through the written word.

Although these general tips originated from a presentation to improve successful prosecutions through the written word, these fundamental concepts should be helpful to attorneys in any practice area.

Know your audience — and be kind to him or her

Unlike when one uses the spoken word to convey a message
— which may be directed to the venire panel, a testifying witness, or the jury — the primary recipient of the written word will be the judicial officer hearing the prosecution. And they are busy people.

Dockets are big and keep getting bigger. Knowing that each case is one of many is a compelling reason to keep one's briefing concise and relevant. Obviously, one needs to give the judge the facts and the law, but it need not be a tome that rivals the weight of War and Peace. Reportedly, scriveners used to get paid by the word, which explains a lot of the "Henceforth, the party of the first part does hereby have and hold for the party of the second part." This, however, is no longer the case. Judges already have a lot to read, and a persuasive brief avoids verbosity and leaves the legal archaisms to the first-year law students who mistakenly think that's how lawyers are supposed to write.

Although they won't break bones, words can hurt you

Recognizing that the judge may well be the ultimate recipient should also affect how an attorney drafts correspondence: A hastily written e-mail to opposing counsel in the heat of anger does little to effectively advance one's position, especially when it is appended as an exhibit to a motion. I endeavor to write every piece of correspondence (even e-mails) as if I were writing to a judge, and with the thought that it will be appended to some pleading somewhere at some point in time. Aside from the intrinsic value in always striving to be professional and courteous — even in the face of vitriol from opposing counsel — this practice helps me in a subsequent motion to compel or strike. And I mitigate the possibility that a nasty-gram written in a fit of anger will hurt my case or credibility later.

Identify the $64,000 question and cut to the chase

A persuasive brief will: tell the judge what you want (i.e., the relief sought), why you want it (i.e., the supporting facts and legal authority), and remove the obstacles that stand in the way of your getting it (i.e., distinguish and diffuse the opposition's materials). Anything else is extraneous and takes away from the message; in other words, it is less persuasive. Your written words should educate and persuade, not be used as a sleep aid or increase the likelihood that your argument will be glossed over by a busy judge.

Credibility is king/queen

Briefs — and attorneys who write them — lacking in credibility likewise lack persuasiveness. Never, ever "cook the books" on your facts. The facts are what they are; you cannot change them and you must live with what you have. Aside from being legally and morally unethical, distorting the facts will ultimately harm your client's position. No case is perfect, but acknowledging imperfections increases credibility, which increases persuasion.

Make sure your cases say what you say they say. If the material upon which you rely is dicta or a dissent, identify it as such. Avoid cutting corners: use a pin-point cite to the legal proposition for which you have cited the authority. Your brief is supposed to help the busy judge — generally citing a 35-page opinion doesn't help the court. Most trial court judges don't have the time or a law clerk to pore through a lengthy opinion. And if the judge makes the time, the opinion darn well better say somewhere in those 35 pages what you say the court said. Better yet, save the busy judge some time and just provide a page cite; it shows attention to detail, improves credibility, and is more persuasive.

Accuracy in citing facts and law enhances credibility. Even when it's not an appellate brief,(1) I try to clearly cite every factual statement to its source:

A blue Ford Explorer, with Washington license plate ABC-123, driving eastbound on Main Street, struck an ice-cream truck parked where Main intersects Elm Street. Dec. of John Q. Citizen, p. 2, Ά 6. When Officer Friendly arrived at the collision scene, Dan Defendant was trapped behind the steering wheel of that Explorer. Dec. of Officer Friendly, p. 1, Ά 3.

Particularly in the more routine motions, the facts usually ultimately control how the court resolves the legal issues (e.g., was the officer's initial contact justified?). Providing proof that can be readily confirmed not only helps to support your client's position, but also protects the appellate record in case of review. When you give the court reason to believe what you say, your words have more effect.

Word choice is important — little things can mean a lot

Chosen words not only convey an express meaning, but also implied connotations. For instance, in the ice-cream truck example, I intentionally chose "collision" instead of "accident"; the former implies reckless behavior, while the latter suggests fortuity. When you are prosecuting Dan Defendant for DUI or Reckless Driving, word choice suggesting that Dan merely had bad luck doesn't help your position.

I used to rely on the implied-connotation rationale for referencing defendants (i.e., the proverbial "bad-guy") as such instead using their names. But now I rely more on the names. The Rules of Appellate Procedure encourage using the parties' actual names:

References to parties by such designations as "appellant" and "respondent" should be kept to a minimum. It promotes clarity to use the designations used in the lower court, the actual names of the parties, or descriptive terms such as "the employee," "the injured person," and "the taxpayer."(2)

I agree that it adds clarity to use the actual name, and that any bang-for-your-buck connotation implied by the term "Defendant" isn't compelling.

Don't hide your argument behind string-cites

Although it is rather controversial in legal writing circles, I agree with noted legal scholar Bryan Garner's [see article on page 25] approach to putting reporter volume and page numbers in an easily identifiable footnote; it strengthens briefing of a legal position. It forces the argument out into the open so that flaws that might otherwise remain buried can be fixed and a tighter written argument follows. The author still cites the authority, but in a footnote rather than in the body of the text. The judge can locate the cited material if necessary or desired, but is not distracted with a clutter of numbers in the middle of a paragraph. Compare, for instance, the following illustration, which is used with Mr. Garner's permission:

Under California law, an action for relief on the ground of fraud must be commenced within three years after the aggrieved party discovered the alleged wrongdoing. April Enters., Inc. v. KTTV, 147 Cal. App. 3d 805, 826 (1983); Winn V. McCulloch Corp., 69 Cal. App. 3d 663, 672 (1976). Because California courts have determined that negligent misrepresentation is a form of fraud, Gold v. Los Angeles Democratic League, 49 Cal. App. 3d 365, 373 (1975), they have held that the applicable statute of limitations is the same as for causes of action based on fraud, Luksch v. Latham, 675 F. Supp. 1198, 1204 n. 10 (N.D. Cal. 1987); see also Bowden v. Robinson, 67 Cal. App. 3d 705, 715–17 (1977).

Under California law, a claim based on negligence must be filed within two years of the date of injury. Cal. Code Civ. P. § 339(1); Burt v. Irvine Co., 237 Cal. App. 2d 828 (1965) (holding that an action against a corporate director for loss to corporation through director's negligence is governed by two-year statute). A cause of action in tort accrues when the allegedly wrongful act was committed. Cline v. Yamaga, 97 Cal. App. 3d 239, 245 (1979); Sonbergh v. MacQuarrie, 112 Cal. App. 771, 773 (1952).

Under California law, intentional infliction of emotional distress, as an injury to the person, is governed by the one-year statute of limitations contained in California Code of Civil Procedure Section 340(3). Cantu v. Resolution Trust Corp., 4 Cal. App. 4th 857, 889 (1992). Under Section 340(3), claimants must commence their action within one year after the cause of action accrued. Cal. Code Civ. P. § 340(3). This statutory period begins to run once the claimant suffers severe emotional distress as a result of outrageous conduct. Id. (holding that, where filing of complaint was the outrageous conduct, cause of action accrued at the moment complaint was filed).

As you can see below, once the citations are moved to a footnote, it is easier to notice — and fix — the flaws that weaken the written argument. For instance, it is now readily apparent that each paragraph begins the same way:

Under California law, an action for relief on the ground of fraud must be commenced within three years after the aggrieved party discovered the alleged wrongdoing. Because California courts have determined that negligent misrepresentation is a form of fraud, they have held that the applicable statue of limitation is the same as for causes of action based on fraud.

Under California law, a claim based on negligence must be filed within two years of the date of injury. A cause of action in tort accrues when the allegedly wrongful act was committed.

Under California law, intentional infliction of emotional distress, as an injury to the person, is governed by the one-year statue of limitation contained in California Code of Civil Procedure Section 340(3). Under Section 340(3), claimants must commence their action within one year after the cause of action accrued. This statutory period begins to run once the claimant suffers severe emotional distress as a result of outrageous conduct.

See how much stronger the edited version is than the original that hid behind the citations?

Under California law, the three-year statute of limitations for fraud begins when the aggrieved party discovers the alleged wrongdoing.1 Because California courts have determined that the negligent misrepresentation is a form of fraud,2 they have uniformly held that the three-year statue applies.3

But a claim based on negligence must be filed within two years of the injury — measured from the time of the allegedly wrongful act.4

Meanwhile, intentional infliction of emotional distress, as an injury to the person, is governed by the one-year limitation period of § 340(3).5 This period begins to run once the claimant suffers severe emotional distress as a result of outrageous conduct.6 (footnotes in this example are for illustrative purposes)

Having suggested the footnote-cite approach doesn't mean that I advocate putting substantive material in a footnote, which is a primary complaint of legal scholars and writers who oppose this method. If the material is important, include it in the text. Often, the name of a seminal case is important (Miranda, Ladsen, Gunwall, etc.). And by all means, use it in the text. But the full cite, including subsequent history, likely is only distracting in the text.  

Setting the stage

An introductory section concisely telling the busy judge what you want and why you should get it sets the stage to prosecute your case through the written word. A preliminary statement is your argument's one shot at a first impression, and can shape how the judge views the case. It is important to keep it direct:

PRELIMINARY STATEMENT
In Washington, police officers must have both clean hands and a pure heart when stopping a vehicle. While working traffic patrol, Officer Friendly clocked Mr. Doe's car speeding at twice the posted limit. The officer had an objective reason for the stop and his subjective intent was to enforce the traffic code. When asked for a driver's license, Mr. Doe said that he didn't have one, but provided his name. A records check reflected that Mr. Doe had a suspended driver's license, as well as an outstanding warrant for his arrest. The scope of the initial detention expanded and provided probable cause to arrest. A search incident to Mr. Doe's arrest disclosed a loaded gun. This Court should deny Mr. Doe's motion to suppress because it was not a pretext stop.

I have encountered one attorney who objected to using this format in appellate briefs as unsupported argument. However, RAP 10.3(a)(3) allows one to use an introductory format without citations to the appellate record or legal authority.

The "bathroom brief"

This tip came from a busy trial judge when advising new attorneys as to the care and feeding of judges. If there is a critical document or case, consider appending it to your brief. This doesn't mean staple Miranda v. Arizona to every motion to dismiss in order for your brief to be considered weighty — from sheer measurement value. If there is something that would be helpful to the judge, who may not be reading the brief in chambers with law books or someplace where Westlaw™ is readily available, attach it to the brief.

Call it what it is: Don't let the opposition's characterization shape the controversy

I clerked for a terrific appellate judge who had been a very successful and well-regarded trial attorney. Judge Toci gave me an abundance of good counsel; I always remember his advice against letting the opponent set the parameters. Similarly, I would caution against trying to jam a round peg in a square hole just because the moving party labels the issue as something that it's not. Use it as an opportunity to enhance your credibility by acknowledging that while the moving party argues that a circle should fit in a square, round pegs don't fit in square holes.

Protect the record

The most important part of trial practice is to protect the appellate record. On appeal, your client lives and dies by what's in "the record," which is composed of the pleadings, testimony, and exhibits presented to the trial court. In motion practice, make sure that you marshal your evidence to support your position. You need to protect the appellate record at the trial court level — you have only got one bite at the apple. It's extremely difficult to supplement the record on appeal. Protecting the record necessarily demands briefing. Fundamental fairness means that the parties — and the court — have the opportunity to review the facts and case law upon which a motion is based.

Conclusion

Advocating your client's position through the written word may not seem very glamorous, but it's important. Even if it doesn't persuade the trial judge, well-written and supported briefing will educate the court and preserve your client's position on appeal. It is worth doing right and it is worth doing well.  

Shelley Szambelan is an assistant attorney for the City of Spokane, and focuses her work on briefing and appellate issues. She is co-chair of the WSBA Editorial Advisory Committee. She may be contacted at sszambelan@spokanecity.org.

NOTES
 1.  RAP 10.3(5) requires a reference to the appellate record for each factual statement.
 2.  RAP 10.4(e).