Writing is arguably the most persuasive form of advocacy. However it is often one of the most under emphasized skills. Many attorneys write “bare bones” motions to avoid tipping their hand only to learn the judge had already made up his or her mind before even walking into the courtroom. The other problem attorneys have with legal writing is they believe the judge doesn't read their motions. This might be true with long complicated motions the court doesn't understand. Therefore I try to keep the following three goals when putting my arguments in writing: 1) Simplicity; 2) Brevity; and 3) Clarity.
SIMPLICITY
“The Genius Is In The Simplicity”
It is the job of an attorney to present his or her case in a way that allows the court to easily arrive at the same conclusion as that attorney. The simpler the attorney can make their arguments, the easier it is for the court to agree with his or her point of view. Unfortunately, attorneys often make arguments that are difficult to understand, and then try to justify these complicated arguments by saying “it’s a complicated issue”; but as Albert Einstein once said “if you can’t explain it simply, you don’t understand it well enough.” If Einstein could achieve simplicity in explaining physics, then simplicity can be achieved in legal writing as well.
If you are having trouble explaining your argument in simple terms you might want to look at the following three factors: 1) The legal theory and source of law; 2) Do the facts support your legal theory; and 3) Do the facts and law support the relief. Arguments often become difficult to understand because they fail to explain one of these issues.
BREVITY
“Judges often associate the brevity of the brief with the quality of the lawyer”
- Justice Antonin Scalia & Brian A. Garner, Making Your Case: The Art of Persuading Judges
Judges have a limited amount of time they can spend on each case. Judges also tend to give more time to issues they consider to be interesting. If you have a long brief with a lot of irrelevant or redundant arguments your point could end up getting lost in the mix. By keeping the brief short and limiting it to the important issues you will help keep your arguments interesting and allow the judge to read it in a more efficient manner.
CLARITY
Proficiency in writing is scarcer than we care to admit. It is important to take the time to arrange your arguments in a logical manner that states your point as clearly as possible. In order to achieve this goal a lawyer must develop a tool box of writing skills to make sure what they're trying to say is clear.
