Today I’m delighted to introduce legal-writing guru Ross Guberman as this week’s guest blogger. As the president of Legal Writing Pro LLC, Ross has helped many of the nation’s top judges, advocates, and government officials improve their writing. Ross is also the author of Point Made: How to Write Like the Nation’s Top Advocates, an Amazon bestseller that belongs on every attorney’s bookshelf. You can read my review of the book here.
Ross was kind enough to share his insight and advice with readers on a variety of topics including ways that attorneys can improve their writing, what the ObamaCare briefs teach us about persuasive brief-writing, the characteristics that make a case “certworthy” in the eyes of the Supreme Court, and how Charlie Sheen can help you remember when to punctuate your sentences with serial commas. Today’s post is the first of three installments.
Can bad writing lose a strong case? Can good writing win a weak case?
Plenty of bad briefs prompt victories, and plenty of first-rate briefs end in defeat. But on the margins, nearly all judges will tell you that writing matters. After all, you can’t separate the writing from the substance. When writing is clear, and even memorable, it makes it all that much easier to understand and to endorse the lawyer’s message.
How can attorneys improve their writing?
Not by just “reading great writing.” If reading alone made you a better writer, then going to a Michelin-starred restaurant would make you a better cook.
Instead, ambitious attorneys should find some writing models or heroes. (My own book identifies 50 of the most influential advocates alive, for example.) Think quality, not quantity. So I’d rather see people dissect a single paragraph of a John Roberts or Elena Kagan brief than skim hundreds of pages of their opinions.
I also suggest studying choice excerpts from non-legal sources. Some of my favorites are the Economist, The New Republic, The New Yorker, and the Wall Street Journal.
You recently published a 140-comment critique of the Solicitor General’s brief to the U.S. Supreme Court in the Affordable Care Act cases. What are the key ingredients to writing an exceptional appellate brief?
From a writing perspective, an even better brief was the one that Paul Clement filed in the same individual-mandate litigation:
Structurally, you need to develop a single sentence on your client’s behalf that cascades through every section of your brief. For Mr. Clement, it’s the idea that “the mandate is unprecedented and unbounded.” That idea is in the first sentence of his introduction and the last sentence of the argument. It also seeps into his fact section and his headings. Agree with his theme or not, you’ll never forget it.
Stylistically, you want to have more fun with your writing. More examples, analogies, and metaphors. More short sentences of seven or fewer words. More sentences starting with short words. More questions, with or without answers. More vivid verbs (“doom,” “jettison,” “spare,” “pluck,” “pocket.”) More transitions, and more interesting ones. More varied punctuation: colons and dashes, for example. Frankly, just more personality all around. If you’re not having fun, how do you expect the judges to have fun?