While oral argument gets all the public attention, appellate practitioners know that their cases are almost always won or lost on the briefs. As a result, in a profession that already places heavy emphasis on good writing, lawyers focusing on appeals are known for honing their written craft to a fine edge. Yet, while it is often said by writing gurus that the key to good writing is good editing, few lawyers devote as much time and energy to learning good editing techniques as they do to developing their writing. The following will preview tips and tricks for editing appellate briefs, both your own work and the work of others.
To start, there is little magic to the fact that simply re-reading your own work after it has had a chance to “cool down” allows you to tighten and improve your writing. But, beyond simply reading and re-reading a brief, imposing some discipline on your editing process may reap additional benefits. Toward that end, Mark Cooney of Western Michigan University Thomas Cooley Law School recommends following five “big” tips.
First, question every “of.” Prose can get bogged down with too many prepositional phrases. Eliminate any that are unnecessary. Often you can take the preposition’s object and move it up to become a possessive or an adjective, such as “the court’s order” instead of “the order of the court.”
Second, cut out unnecessary words. Wordy phrases also weigh down your prose. Often three- or four-word phrases are better said in one word (or two). For example, “that” is better than “the fact that,” and “if” can generally stand in for “in the event that.”
Third, watch out for verbs that are buried in wordy nominalizations. Strong verbs improve flow and make an impact. So be on the lookout for verbs that have been replaced by abstract nouns—nominalizations, as grammarians call them—often words that end in –ion, -ment, or –ence. So, “concluded” is better than “reached the conclusion.”
Fourth, embrace conjunctions at the beginning of sentences. Contrary to what your grammar-school teacher said, starting sentences with conjunctions is completely acceptable. Every U.S. Supreme Court Justice, great judicial stylist, and professional writer in the history of the English language agrees that doing so, in strategic places, can improve flow and signaling.
Fifth, and you’ve heard this before, avoid lawyer-speak. Unnecessarily inflated language is Fool’s Gold. Don’t bog down your message. Connect.
Beyond imposing some discipline on the process of editing your own work, there is an art to editing others’ writing. This often falls by the wayside due to press of business and lack of training on good mentoring. But, as Megan Boyd of Georgia State University School of Law notes (and related scholarship confirms), giving feedback early and often will result in a net benefit to the reviewer, the writer, and their clients. Professor Boyd offers different, concrete steps for editing the various elements of an appellate brief, but overall has a few tips that apply to all editing and mentoring.
First, be specific. Precise suggestions for improvement go a long way in helping the associate become a better writer. This might include redlining a few sentences to show the associate explicitly what good writing looks like, or inserting a comment bubble to provide a directive or include questions to guide the associate.
Second, give feedback verbally and in writing. Associates generally learn the most from written feedback when they can ask the mentor questions about certain suggestions or changes.
Third, be timely. Finding the time to provide feedback can be a challenge. But both the mentor and the associate will benefit if the mentor provides the associate with feedback quickly, ensuring that the associate’s written work is still fresh in mind.
Finally, give praise when due. Mistakes demand correction, but taking time to acknowledge good work requires an independent choice. Particularly for young associates, the pride in having a mentor tell them that they did a good job can sustain them through the long periods when they’re still learning to practice and making mistakes on a seemingly daily (or hourly) basis.
Professor Boyd and Professor Cooney will elaborate on these ideas in a panel discussion moderated by your humble blogger at this year’s DRI Appellate Advocacy Seminar in Chicago on July 19, 2019.
Adam represents both public and private clients in civil writs, appeals, and mandate proceedings, as well as traditional litigation and dispute resolution. In addition, Adam is an adjunct professor teaching courses in local government and land use law at the University of San Francisco School of Law.