In Point Made, Ross Guberman, with tact and clarity, distills timeless legal writing principles by highlighting their use in actual, excerpted legal briefs. These briefs come from some of the very best writers our profession has to offer, including Ruth Bader Ginsburg, David Boies, and Lawrence Tribe. By reading Point Made, not only do you receive the technical know-how of these great writers, but you also take a glimpse into their minds and how they approach brief writing. Although I’ve provided a book summary and outline on Point Made previously, I thought it would be useful to write a more action-oriented approach. Here are six of my favorite legal writing tips from the book:
- Begin Each of Your Paragraphs By Answering a Question That You Expect the Court to Have
This tip starts with mindset, imagining a dialogue between you and the judge when you’re writing. This gives you the opportunity to anticipate each question the judge might ask and then answer those questions with every one of your opening paragraphs.
Using the Jones v. Clinton case as an example, Guberman showcases how this might look:
Judge’s Question: So you want me to deny summary judgment. But President Clinton says Jones hasn’t proved that she suffered on the job.
Your Answer: Under Jones’s section 1983 equal protection action, she must prove intentional discrimination but not “tangible job detriment.”
See how this opener answers the obvious question a judge might have—i.e., the noticeably missing element of an employment discrimination suit ,adverse action, doesn’t sink the claim. Guberman says that a good opener should “give the court a reason the heading is right, answer a question on the court’s mind, and flow from the previous paragraph opener and into the next.” And this tips also enhances the logical structure of your brief by forcing you into a linear way of thinking about the issues in the case.
Guberman concludes this section by setting forth the five questions that judges predictably have when reading a section: (1) What is the standard; (2) How does it apply in cases like this one; (3) Which courts have done what you’re asking us to do—and why? (4) What about the other side’s points? and (5) What’s the bottom line? So, anticipate, and then answer, these questions while imaging a dialogue with the judge, and watch your logical structure crystallize, and your persuasiveness skyrocket.
- Concede bad facts, but place them in context
Guberman begins this section with a quote from D.C. Circuit Chief Judge Patricia Wald: “Spend time amassing [the facts] in a compelling way for your side but do not omit the ones that go the other way. Tackle these uncooperative facts and put them in perspective.” Heeding this advice and acknowledging bad facts carries three advantages: (1) it avoids the impression that you have secretively tried to conceal facts from the judge; (2) it establishes that you have carefully considered these matters yet don’t regard them as significant; and (3) it prevents your opponent from bringing them to the courts attention first, which will hurt you much more than acknowledging them in the first place. Note, there are some experts who suggest that putting on unfavorable evidence and facts gives it additional weight and should be avoided—e.g., Robert Klonoff and Paul Colby in the book Sponsorship Strategy(B00k) (Check out their article here). But it appears the great weight of authority goes the other way. Therefore, “[d]raw the sting of unpleasant facts by presenting them yourself,” as said by former Solicitor General Frederick Bernays Wiener, and don’t conceal.
Guberman suggests a couple ways to take the sting out of these bad facts. First, you can introduce your bad facts with a strategic use of the passive voice. Second, you can start a sentence with “although” to relegate the bad fact to its more favorable context. Third, you can spin the key fact in a way that allows the court to view the potential bad actor, for example, in a more favorable light—e.g., violent criminal into a struggling drug addict. Guberman provides a brief where the advocate turned a harmful fact—a corporate. Finally, you can humanize a bad actor, just as Paul Clement did by humanizing a wife who attempted to poison her husband’s mistress, conveying her as a spurned, distraught spouse. All four, used independently or in conjunction, will help take the venom out of your bad facts and increase your credibility and candor in the process.
- End your fact section with an impressionable final image or thought
For this legal writing tip, Guberman advises that we should conclude our fact section with a bang, as the ending is the second most important part of a story (with the lead being the first). He highlights two fact sections that illustrate this principle, both portraying the represented party as someone stripped of their right to something they deserve. In one example, it was the property rights of a Hollywood film; in the other, the personal property of a CEO.
Stated differently, you can use the conclusion of your fact section to emphasize a case theme and engrain that theme into the fabric of the case in the process. A theme is an idea or notion that explains the facts in a way that shows morality, ethics, or other laudable virtues are on your side. Many advocates invoke notions such as greed, justice, trustworthiness, et cetera. These themes often sound in equity and have even been codified in some statutes, such as the California Civil Code—e.g., “No one can take advantage of his own wrong,” “He who takes the benefit must bear the burden,” and “He who consents to an act is not wronged by it.”
End your fact section in a way that reinforces your morally sound case theme, thereby impressing a persuasive point upon the judge in which they can view the entire brief.
- When Analogizing, Don’t Overburden Your Brief With Citations
Instead of offering a specific legal writing technique or strategy in this section, Guberman alternatively provides a guiding principle advocates should follow.
He suggests that advocates should use authorities sparingly so that they do not dilute your own authentic analysis. Use only what is absolutely necessary from precedential cases, and avoid including every relevant fact, quote, and other detail that is only tangentially related to the disputed issues in your case. If you don’t, you risk giving off the impression that your “reasoning must be the servants of [your] authorities, with the result that [your] argument often becomes heavy from forced subordination,” says Howard C. Westwood, former Covington & Burlington attorney. So, cut the clutter found within your authorities that add nothing to your case, and use “the cases merely to illustrate, like the pictures in a book.”
Guberman provides a fantastic example of this forced subordination in action, quoting a brief that discusses precedent for several paragraphs, including every single detail involved in that case. He sums it up illustratively by saying “the attorneys’ discussion of [the precedent] has become an end in itself.”
On the other side of spectrum is an example from David Boies, where he tells you only the caselaw facts that are integral to his analysis, i.e., that a company in an Antitrust case had “inventory problems.” He omits discussing any non-essential facts, such as where the warehouse was or what kind of products it sold because they add nothing to his principle point. This example shows that the persuasive force of using authority is as a means to an end, not an end in itself.
This is not to say that you should never cite facts when citing authority. When the point is central to your case and likely to be controverted, it is prudent to explain the facts and its holding, says Garner and Scalia in Making Your Case: The Art of Persuading Judges. But when the point the authority stands for is not likely to be contested, use the case as a tool of illustration to fortify your argument instead of overburdening the court with unnecessary facts and analysis that will only distract your reader.
- Integrate incisive quoted phrases and language into a sentence about your own case
Implementing this legal writing technique is decidedly preferable to quoting authority wholesale—i.e., cutting-and-pasting authority in successive fashion, sentence after sentence, with no original thought and language. Scalia and Garner explain the disadvantage such quoting creates: “[It] produces an air of artificiality, even a lack of self-assurance.” They go on to explain that it is your original reasoning, expressed in your own words, that the court finds both more interesting and persuasive.
Guberman side-steps the pernicious effect of the cut-and-paste approach while still allowing you to utilize persuasive quoted language. He does this by advising that you merge the quoted language into your own prose. Here’s an example from his book: “Indeed, the implausible justifications proffered by Proposed Intervenors merely reinforce the ‘inevitable interference that the disadvantage imposed’ on gay and lesbian individuals by Prop. 8 ‘is born of’ nothing more than naked ‘animosity.’ ” Note that the lawyers here, Ted Olson and David Boise, didn’t just intersperse a single phrase within their own construction—they used three different words or phrases at different times in a single sentence. This technique allows you to capture the persuasive value of precedential language all while convincing the court that the authority you cite is indispensably connected to your own analysis. And not to mention avoiding any air of artificiality, which quoting directly from the source might create. So, take the more laborious, yet persuasive tact, and weave quoted language artfully into your own sentences.
- Assert that the case you’re citing applies even more forcefully to your own dispute
This legal writing technique is fairly simple, and if used correctly it can “deeper your persuasive voice,” says Guberman. The goal is to cite authority and then explain why the proposition that authority stands for applies even more forcefully to your case.
Let’s say you are dealing with a constitutional law issue, e.g., the equal protection clause, and you are advocating that a certain statute violates that clause and consequently should be struck down. If the seminal case you are citing to support your conclusion involved a statute that was less offensive than the statute you are litigating, make that point known. Explain why the prior statute, which was struck down, had some virtues that your statute is demonstrably devoid of. This will establish, by analogy, that if the more defensible statute was unconstitutional, the one at issue should be as well.
In this section Guberman provides a number of examples that show the type of language you can implement to take advantage of this legal writing technique. This includes, “If anything, the coerciveness is even more profound [in this statute]” than in the [prior statute]. And [insert rule/element/standard] “applies with even greater force to” this setting. Lastly, when numbers are involved, such as the award of damages or attorneys’ fees, make it explicit that the award upheld or overturned in the precedential cause was far greater or far less than the monetary figure at issue here.
This rhetorical tool is intuitive and easy to apply, but its persuasive value should not be understated. It implicitly tells the court why ruling in your favor will avoid any possibility of reversal because far less or more offensive conduct has been permitted or impermissible relative to your case. Guberman does offer a word of caution, however. Make sure that calling attention to precedent that applies more strongly to your case doesn’t set the bar higher than it need be as a result. In other words, if the stated rule or standard applies to your case without much question, there is no need to call attention to various facts from precedent that may complicate the matter; one does not need a cannon to kill a rabbit.
There you have it. Six tips from Point Made by Ross Guberman to improve your legal writing. I’d like to do a follow up post on a couple more specific tips from this book as there are many more I’m excited to implement in my practice. But to fully understand all of these tips and maximize their persuasive force, you must buy the book yourself, as the examples from excerpted briefs Guberman uses to illustrate his tips are what truly hammer these points home.