Brief Writing

1. Brief Writing By Matthew Littlefield (VP of RWA) and Benjamin Keck (GSU alum; Federal Judicial Clerk)

2. Objectives • Highlight the differences between RWA-style writing and Proper Style. • Give you tips and strategies to use in your competition briefs. • Make you aware of common pitfalls seen in legal writing. • Help enhance your experience on Moot Court and become better writers.

3. Why this is important • Many competitions heavily weigh the score on the brief. • It’s the part of the competition we have the most control over and time for perfection. • A well researched and written brief means a well prepared team for oral arguments. • GSU historically has great oral arguments, but the briefs are an area of improvement. • We picked you all to join because we know you can write well!

4. RWA-style vs. Moot Court • RWA focused a lot on full case presentation for nearly all cases used. • RWA assignments essentially wanted a fleshed out case-brief; long and boring. • In reality you only fully present a case or two. • You want to fully present your primary case (usually the one that is creating the problem’s issue). • If one exists, you also fully present any direct counter authority (ex. another circuit’s case where a circuit split exists in the problem). • Supporting cases are rarely fully presented.

5. RWA-style vs. Moot Court • RWA assignments, especially ones involving a trial court issue, were largely fact-intensive exercises where each and every fact needed to be addressed. • Moot Court problems exclusively cover appellate issues. • Therefore it is important to remember the individual parties in the case and also the broader precedent and policy issues.

6. RWA-style vs. Moot Court • Ask yourself: What’s the impact? • “[Y]ou should explain not only what the case is about and what the background law is about, but also why the case is important (or unimportant)-what if anything turns on the outcome, either for the parties or for some larger community.” • Richard Posner, U.S. Court of Appeals for the Seventh Circuit

7. Two Great Sources of Information for Legal Writing

8. Introductions • Make your introduction a persuasive narrative. • Tell a compelling story • Don’t bore your reader with procedural issues or dense facts. • Make difficult issues easier to understand by analogizing them to common, well-understood situations.

9. Introductions • “It's got to be a good story. I mean every lawsuit is a story. I don't care If It’s about a dry contract interpretation, you've got two people who want to accomplish something and they're coming together. That's a story. And you've got to tell a good story. . . . [N]o matter how dry it is, something's going on that got you to this point and you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments. . . .” • John Roberts, Chief Justice of the United States

10. Alaska vs. EPA • When Chief Justice John Roberts was an advocate, he once wrote that determining the "best" technology for controlling air pollution is like asking people to pick the "best" car:

11. Alaska vs. EPA • “Mario Andretti may select a Ferrari; a college student a Volkswagen Beetle; a family of six a mini-van. A Minnesotan's choice will doubtless have four-wheel drive; a Floridian's might well be a convertible. The choices would turn on how the decision- maker weighed competing priorities such as cost, mileage, safety, cargo space, speed, handling, and so on.”

12. 5 Ways to Write like John Roberts • Take a look at the handout • Writer of Point Made • Just a few of the many techniques you can implement into your own writing to make it clearer and more compelling.

13. Sentences • Write in short sentences. • If a sentence runs on for more than three and one-half typed lines, break the sentence in half. • Make it two sentences.

14. Sentences Example: • The evidence proffered by opposing counsel is insufficient to set out a prima facie case for intentional infliction of emotional distress, and therefore the Court should grant summary judgment and hold that plaintiff is not entitled to relief as a matter of law. • Too long and way too boring.

15. Sentences • “Remember that rules restrict the number of pages, not the number of sentences.” • Roger Miner, U.S. Court of Appeals for the Second Circuit

16. Sentences • "[W]rite with your ear." Read your draft aloud to yourself or at least read it through in your mind. If neither you nor anyone you know would ever utter a sentence like the one you have written, head back to the drawing board.” • Robert Kapelke, former Judge, Colorado Court of Appeals

17. Paragraphs • Put at least two or three paragraphs on a typed page. • If a single paragraph fills the whole page, break the paragraph in half. • Make it two paragraphs.

19. Use Active Voice • Use only the active voice. • We write: "Jim threw the ball." • Not: "The ball was thrown by Jim.“

20. Use Active Voice • “The passive [voice] sanitizes and institutionalizes [] writing, and often anesthetizes the reader: all views are attributable to an unknown "it." "It is said, it is reported, it is argued," etc.” • Patricia Wald, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit

21. Use Active Voice • BUT, exceptions do exist. Using passive voice can tone down a fact not in your favor. • “The plaintiff was unintentionally struck by a stray bullet from defendant’s misfiring pistol.” • Or • “Defendant fired his pistol and hit the plaintiff’s leg.”

22. Action Verbs • When you have a choice, always use an action verb instead of the verb "to be" and an adjective. • We write: "The rule applies here." • Not: "The rule is applicable here."

23. The Split Infinitive • Try not to split the infinitive. It just sounds bad. • Even Chief Justice Roberts “edited” the Constitution a bit at President Obama’s swearing in ceremony to avoid doing so: • He said "...to execute the office of the President faithfully" instead of "to faithfully execute the office...”

24. Topic Sentences • Start each paragraph with a topic sentence. • Not doing so makes the brief unclear and choppy. • Lead the reader to the next point not only by headings but also by topic sentences.

25. Headings • Use many headings and sub-headings to break up your memorandum or brief. Little pieces are easier to read. • Many judges skim the headings in oral argument, but they rarely read the paragraphs during that time. Therefore, put the best arguments in the headings!

26. Argumentative Headings • Use argumentative headings. • Compare: • "This Court Should Affirm Because There Is No Private Right of Action under the Federal Food, Drug and Cosmetic Act." • VS. • "The Relevant Provisions of the FFDCA."

27. Argumentative Headings • Looks matter • “Appropriate headings and subheadings increase clarity. They explain where the brief is going and provide signposts along the way. The captions should be as brief as possible, but sufficiently explicit to describe the point. Numbering of sub-points may also be helpful. That tells the reader the brief is turning to a different but related aspect of the same subject.” • Daniel Friedman, U.S. Court of Appeals for the Federal Circuit

28. Usage of “That” or “Which” • When you have a choice between using the word "which" and using the word "that," the word "that" is most often correct. • “Which” is usually is preceded by a comma.

29. Usage of “That” or “Which” • Do not, however, overuse the word “that.” It’s not always necessary, and it can make your writing unclear. • “He knew she was lying about the topics they had discussed.” • Versus: • “He knew that she was lying about the topics that they had discussed.”

30. Usage of “However” • Do not start a sentence with the word "however." • Rewrite the sentence to put the word "however" in the middle of the sentence. • It helps contrast the two issues or items, and it’s also grammatically correct.

31. Avoid Alphabet Soup • Judges read a lot of briefs. • Alphabetical short form becomes meaningless after a judge has read the first twenty or thirty briefs.

32. Avoid Alphabetical Soup • For example, if ABC Co. thinks FDA regulation triggers MDA preemption in the U.S., then ABC Co. will lose. • Use words; not gibberish.

33. Dates • Replace dates with phrases that convey a sense of time. • In private practice, Attorney General Holder did something similar with the phrase "one day after."

34. Eric Holder, Butler v. MBNA • “Plaintiff's current claim arises from an incident where she allegedly "fell down" during an October 13, 2004 meeting with MBNA Human Resources Personnel. This incident occurred one day after plaintiff returned to active employment (on October 12) following a 50-day period (from August 23 to October 11) of approved leave for a vision problem. • Notice how the relevant dates are included and the argument is still advanced.

35. Party Names • Use words, not letters, as a short form. • For example, "National Superior Fur Dressing & Dying Company" does not become "SFDDC.“

36. Party Names • Think about the persuasive force of the words. • For example, National Superior Fur Dressing & Dying Company could be shortened to “National Superior" if you would like the company to sound like a large corporation. • On the other hand, the short form should be "Superior Fur" if you want the company to sound like a Ma-and-Pa outfit.

37. Do Not Name-Call • “Name-calling of opposing parties or counsel or of the trial judge brings most reviewing judges to an instant boil. Not only are such attacks unprofessional and guaranteed to irritate, but they simply cloud the merits of any argument. • If an opponent's argument lacks substance, this should be demonstrated through deadly logic, not vilification.” • Robert Kapelke, former Judge, Colorado Court of Appeals

38. Block Quotations • Use block quotations rarely, if at all. • The judge's eye will naturally jump over a block quotation and go on to the next line of text. • By including a block quotation, you are inviting the judge not to read the cited quotation.

39. Block Quotations • “I have seen page after page of quoted materials in some briefs and have thought: "What a waste of precious space!" Excessive quotation leaves little space for persuasion. Paraphrase!” • Roger Miner, U.S. Court of Appeals for the Second Circuit

40. Block Quotations • “Block quotes ... take up a lot of space but nobody reads them. Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer. Let's face it, if the block quote really had something useful in it, the lawyer would have given me a pithy paraphrase.” • Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit (emphasis added)

41. Block Quotations • You can avoid block quotation by using quotations of fewer than fifty words. • If necessary, use a quotation that is forty-nine words long. Then say: "The court went on ...." and then use another forty-nine-word quotation. • This will trick the judge into reading the quotation.

42. Block Quotations • If you must use a block quotation ,then you must trick the judge into learning the content of the block quotation. • Do not introduce a block quote as: "In Smith v. Jones, the Court held: ...." • Rather, introduce the quote: "In Smith v. Jones, the Court held that our side wins and the other side loses: . . . . " • By using this form, the judge will get your point even when he does not read the block quotation.

43. Love the word “Because” • As a general rule, and especially in headings, the word “because” is your best friend. • Without “because” or “since,” your reader will always ask herself “WHY” she should agree with your argument. • Read your brief and be sure there is not an instance where you ask yourself “why?” without an answer being in the next phrase.

44. Love the word “Because” • Imagine the following headings without the "because" clause, and you'll see how much the word can improve your headings and subheadings.

45. Miguel Estrada, Weinberger v. Aetna Health • “This Court's Order does not involve a "controlling question of law" because there are alternative bases for federal jurisdiction.”

46. FareedBartlit, Micron v. Rambus • “Rambus's attorney-client privilege and work-product claims should be pierced because Micron has shown prima facie that Rambus obtained legal advice in furtherance of a crime or fraud.”

47. Discussing Cases Persuasively • Cite to analogous cases where the trial court agreed with your opponent, but the appellate court reversed. • Theses types of cases explain why the trial court was wrong and therefore help your argument make sense and have teeth. • They also show that opposing counsel is simply playing a losing game. • Last, even appellate judges do not like to be reversed.

48. Discussing Cases Persuasively • The second most persuasive precedent is a case in which the trial court agreed with your side, and the appellate court affirmed. • They show your argument is strong because two courts have already passed on the issue favorably.

49. Discussing Cases Persuasively • The least helpful case is one in which the court you are addressing has simply discussed the issue in dictum. • Only cites to this type of case when your issue has support in another circuit/jurisdiction. • This gives you a platform for using another circuit’s precedent.

50. Diffusing a Defense • When approaching a defense, try and characterize the opposing party’s conduct or actions as going beyond the bounds of the proffered defense. • If the defense allows for reasonable self-defense, then show that the opposing party was using unreasonableforce. • Etc.