[Editor’s Note:  This month faculty members share their favorite brief writing or oral argument tip.  This is the third entry in the series.] 

Maybe it’s like your first kiss, or maybe I’m unusual this way, but I think I will always remember my first brief.  I was a new associate working with two partners on the defense of a federal securities lawsuit.  The litigation was just a minor skirmish in a larger war: the plaintiff was attempting a hostile takeover of our client, and the litigation was intended to bring some more pressure to bear on our recalcitrant board of directors. Could we do anything to relieve that pressure?

The senior partner asked me to research an obscure provision of securities law that he felt might provide a basis for a motion to dismiss under Rule 12(b)(6).  I prepared a memo that carefully assessed the strengths and weaknesses of his theory, ultimately concluding that it was viable.  “Great memo,” he responded, “now rewrite your analysis as a brief in support of a motion to dismiss.”

I put a day into drafting the brief.  As I dispatched my draft to the partners, I felt quite pleased with how I had worked through a very technically complex legal argument, synthesizing a large body of legal authorities on a doctrine I had never even heard of just a few days earlier.

Back the draft came, covered with red ink.  I was crestfallen.  Did I misunderstand the law?  Had I missed a critical case?  Was the Bluebooking off?

As I reviewed the partner’s edits, it quickly became clear that all of his changes were stylistic — he had not even a quibble with the substance of the argument.

As we discussed the edits, I came to appreciate what he was up to: simplification.  Long paragraphs were split in two.  Long sentences were also chopped up, reduced as much as possible to noun-verb-object, noun-verb-object, noun-verb-object.  Unnecessary words and clauses were ruthlessly cut.  What was left reminded me of a newspaper article in the spareness of the prose.

This was all intended, of course, to convey the substance of the argument in as clear and concise a manner as possible, respecting the fact that a busy judge and her law clerk would not be inclined to devote a lot of time and attention to our brief.  Even in the best circumstances, a brief will be competing with many other demands on the judge’s time and attention.  But a brief asking for dismissal as a matter of law really had the deck stacked against it — this was long before Iqbal — and we knew the judge would pick up the brief with a strong expectation that the motion would be denied.  For that reason, it seemed especially important to capture the judge’s attention quickly and carry her swiftly through the main points of the argument.

The prose, as rewritten, had a distinct sense of rhythm, with short, similarly structured sentences assembled into short, similarly structured paragraphs, and strong topic sentences at the start of each paragraph to carry the reader forward.

The effect reminded me of something I had once heard about brief-writing: a good brief marches, and a great brief sings while it marches.  I didn’t know — and still don’t know — how to make a brief sing, but I think do have a feel for the sort of rhythm in sentence and paragraph structure that gives a brief a marching quality.

In any event, this experience with my first brief made me a ruthless editor of all of my subsequent briefs.  I’ve tried to read and re-read everything, always looking to remove what is unnecessary and to simplify the structure of my sentences and paragraphs.  (Needless to say, my editing style is a little different with blog posts!)

Not that I can say that all of the work on my first brief actually paid off.  The wise, old judge recognized that the case would go away on its own.  She took the motion on advisement and waited the few weeks that were necessary for the business people to consummate a deal that (as the press release said) “created value” for the shareholders of both companies.  Merger completed, the lawsuit was dropped with no resolution of the issue raised by the motion to dismiss.