For The Defense, October 2010 - DRI Today

W R I T E R S ’ C O R N E RBuild a Better BriefTips for Persuasive Legal WritingBy Kristen E. Dennisonn Kristen E. Dennison is an associate practicing with Campbell Campbell Edwards& Conroy PC in Wayne, Pennsylvania, where she concentrates in trial and appellatework for manufacturers and other companies in tort and product liability matters. all instances of passive voice, and then change the lan-She is a member of DRI’s Product Liability and Appellate Advocacy Committees. Writers’ Corner, continued on page 8778 n For The Defense n October 2010For the most part, practicing attorneys each had anintroduction to legal writing as a first-year student inlaw school. After law school, attorneys have to put topractical use what they had previously used only in atheoretical sense. Over the years, attorneys pick up badwriting habits or just become too busy to put the necessarytime and attention into good writing, and sometimesthe output makes someone wonder, did counselsimply dictate stream of consciousness without botheringto read the final product?Writing is an essential part of an attorney’s role. Nomatter how good or bad an attorney might be on his orher feet in an oral argument, a court has already formedan opinion on the merits of a case from the briefingsubmitted to the court. Often a court will not even hearan oral argument and simply decide an issue based onthe briefs. Given that a brief is the first opportunity toimpress a court, clear and persuasive brief writing is afundamental tool that too many attorneys let go by thewayside.Be ConciseAll too often lawyers fall into the trap of using excessverbiage in brief writing. You receive no extra points forusing extra words. The only thing gained by foregoingsimplicity is confusing the reader. As E.B. White quotedWilliam Strunk, Jr.,:Vigorous writing is concise. A sentence should containno unnecessary words, a paragraph no unnecessarysentences, for the same reason that a drawingshould have no unnecessary lines and a machine nounnecessary parts. This requires not that the writermake all sentences short or avoid all detail and treatsubjects only in outline, but that every word tell.E.B. White, Introduction to William Strunk, Jr., and E.B.White, The Elements of Style, at xv–xvi (4th ed. 2000).It sounds so simple, yet it can be so difficult to achieve:“Writing good standard English is no cinch, and beforeyou have managed it you will have encountered enoughrough country to satisfy even the most adventurousspirit.” Strunk and White, The Elements of Style, at 84(4th ed. 2000).Omit excess words. Don’t write, “the question as towhether”—just write “whether.” Strike “the fact that”from your briefs. Don’t write “in regard to” or “withregard to”—“regarding” is all that you need. Use plainEnglish and avoid legalese. Using plain English doesn’tmean it has to be boring. Grab a court’s attention. Makeit interesting. But use everyday, ordinary words to makeit happen.ProofreadProofreading is one of the essential elements of writingtaught at an early age. And for most attorneys it is secondnature to take that last important step before signinga brief and filing it, usually to avoid embarrassment ofputting our names to sloppy work. Failing to proofread,however, may have more dire consequences than simpleembarrassment. For instance, one court slashed attorneys’fees after reviewing the moving papers and lambastingthe attorney for numerous typographical andother errors riddled throughout, commenting,A long time ago in a galaxy far, far away, each lawyerknew he or she could not nail any old slap-dashparchment to the church door and expect someoneelse to pay for it. Most lawyers who practice in thiscourt also know that.They all should.McKenna v. City of Philadelphia, No. 07-110, 2008 WL4435939, at *17 (E.D. Pa. Sept. 30, 2008).Let this be a lesson—courts do look, and do care,about the quality of the briefing they are asked to read.Avoid the Passive VoiceTake a famous example of the passive voice, a phrase oftenused in the political arena: “Mistakes were made.”Interestingly, in the McKenna case, the attorney usedalmost that exact language when asked to comment onthe court’s decision to reduce attorneys’ fees: “There weremistakes, but they were caught.” Shannon P. Duffy, Typosand Errors Lead to Slashed Fees for Attorney, 238 The LegalIntelligencer 6876 (2008). These examples use passivevoice as a defensive mechanism to shift attention awayfrom a speaker or a writer. In persuasive writing, however,you want to focus on your point. You definitely shouldnot shift a court’s focus away from an issue by using thepassive voice. Before filing a brief, read through it seeking