Brief Writing Tip #1 – Bad Questions Lead to Wrong Answers

The relief you receive directly correlates to the way you frame your question presented.  You do not have to ask one long, incomprehensible question.  It is okay to break it up into a few sentences in order to tell a story that is easy to follow.

A good brief should be a great syllogism.  The law is X.  X was not done.  Therefore, my client is entitled to relief.  Sometimes these syllogisms are complex, containing several major and minor premises.  The simple fix is using headings and subheadings.

As a judicial clerk, I read many appellate briefs with multiple questions presented. When the question made me say, “what?” that attorney immediately lost some competency points.  To my dismay, prosecutor’s briefs were consistently better than defense briefs.  Winning a case on appeal is already an uphill battle, why make it harder by clouding the issue?  Some briefs required two or three readings before I understood the point.  You can be sure a judge will not do that.  The point of a brief is to make the court’s job easier by simply explaining your position and why it is correct. 

Frame your question in a favorable, but not misleading, way. One time I read all the case law a defense attorney cited and I was ready to recommend a favorable decision.  Unfortunately, her issue presented was slightly different than what the cases held.  If she had framed her question differently, she would have won.  Do not let this happen to you. Make sure the relief you are asking for necessarily follows a favorable answer to your question.

The best way to present a good brief is to hire an attorney whose practice consists mostly of brief writing.  In football they say the best defense is a good offense.  Your briefs and motions are your offense.  Your job as defense is to stop the other side from making any points by objecting and cross-examining.  My job as offense is to advance the case and make points for our side by persuading the judge and keeping irrelevant information out.

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