To maximize the persuasive power of your writing, focus first on your own well-being. Drafting a brief is stressful. The blank screen torments us all, from first-year associates to senior partners. But it does not have to be that way. With a reliable drafting routine, you can minimize the stress of writing an initial draft. Conquering first-draft anxiety quickly will help you write a more persuasive brief. That is because you will give yourself time to edit and revise your brief to make it clear and concise. If your writing is clear and concise, then your audience, whether it be a court, an arbitral tribunal, or a regulator, is more likely to understand your argument. Helping your reader understand your argument is essential to persuading your reader to agree with you. In other words, if you are kind to yourself, you can be kind to your reader, and if you are kind to your reader, you can win for your client.
Use the Drafting Process to Manage Your Anxiety
When writing your initial draft, focus on your process rather than your prose. No one will read your first draft. You do not have to make it beautiful. You just have to get through it. Fill in as much blank space with text as you can, whether it reads well or not. Putting text on the screen is like opening a pressure relief valve. The more you write, the more pressure you release. Even setting up a document with a case caption, title, and signature block will reduce blank space and get you going. Once you have set up your document, organize it with headings and sub-headings to outline your argument and divide the brief into discrete sections. Dividing the brief helps reduce stress because you can treat each section as a small task unto itself, and a series of small tasks is less daunting than one large project.
Draft one section at a time, beginning anywhere you like. I start with whichever section is easiest, such as the summary of the facts or the standard of review. Then I move to the next easiest section and so on. Starting with the easy sections helps reduce pressure and build momentum. The more you write, the better you will feel. Then when you reach a difficult section, if you get stuck, you will not have to fret that you still have many more sections to draft after that one.
If you get stuck on a section, I recommend taking the same approach there as to drafting the brief as a whole—fill in as much blank space as you can, starting anywhere you can. Typically, when we draft an argument, we know what we want to say, and we write a topic sentence, state a rule, add support, apply the rule to the facts, and conclude. But when you get stuck, that process breaks down. Perhaps you are having trouble developing a rule or figuring out how to distinguish the other side's authority. Or maybe you realize your original plan for the argument will not work and you need a new one. Then writer's block sets in, and the blank space starts taunting you. When that happens, recall Ernest Hemingway's advice: "All you have to do is write one true sentence. Write the truest sentence that you know." Think of one thing that you know you can say, whether it be quoting a case or asserting a specific fact, and write that. Write it even if it will eventually fall in the middle or at the end of the section rather than at the beginning. Once you have written that one true sentence, it should be easier to write a second. Think of another detail you can fill in or another case you want to cite and add it. Build out the section one sentence at a time. The more you write, the more you will narrow the area of uncertainty. Once you have only the trickiest piece left to fill in, read over the text you have, and the answer to the tricky part should reveal itself.
I find that introductions provide the most opportunities to get stuck. The worst-case scenario is staring at a blank screen as you struggle to think of a killer opening line while knowing that you have a whole brief left to write after inspiration strikes, if it ever does. I try to avoid that predicament by drafting introductions last, though I do not start them last.
As I work on the body of the brief, when I think of a phrase to use or a point to make in the introduction, I deposit it in the space where the introduction will go. Then, when I eventually turn to writing the introduction, I have material to work with.
Refine Your Draft to Assist Your Reader
Once you complete your initial draft, you will have lifted the heaviest weight from your shoulders. With your stress relieved, you can turn to improving your draft to help your reader. This is the time to focus on prose. As Supreme Court Associate Justice Louis Brandeis said, "There is no great writing, only great rewriting." If you edit and revise your brief effectively, you can make your argument easy to read and to understand, and therefore, more persuasive.
To make your argument readable and understandable, remember the two C's: clear and concise. If your writing is clear and concise, then your reader can comprehend it with minimal effort. Clear writing flows naturally from sentence to sentence and from paragraph to paragraph. To make your sentences flow, guide your reader from "old" information to "new" information. New information is any information the reader has not seen before. Introduce new information at the end of a sentence. Then use that same information to lead the following sentence, where it will be "old" information. Here is an example:
In 1976, Congress passed the Foreign Sovereign Immunities Act. Under the Foreign Sovereign Immunities Act, a foreign state is presumptively immune from suit in the United States. To overcome the presumption of immunity, a plaintiff must show that an exception to immunity applies.
If your writing does not move from old to new information, then your reader likely will have to reread your sentences to understand them. For example:
In 1976, Congress passed the Foreign Sovereign Immunities Act. When an exception to sovereign immunity applies, a party can rebut the Foreign Sovereign Immunities Act's presumption of immunity.
The latter example contains the same information as the former version but with inferior flow. The flow is poor because the information is presented in the wrong order. The first sentence introduces the Foreign Sovereign Immunities Act, but the second sentence leads with new information about exceptions to immunity, then mentions the Act, and then concludes with more new information about a presumption of immunity. Though one could figure out from those two sentences that the Foreign Sovereign Immunities Act treats foreign states as immune from suit in the United States unless an exception to immunity applies, a reader likely would have to read the sentences multiple times to get there.
Writing from old to new information takes discipline. That is because, when we write, we know what we mean, and we unconsciously skip steps as we say it. Skipping steps forces the reader to work out the message rather than simply read it. Remember that your reader is not in your head with you. He or she cannot follow unless you lead. Present each analytical step of each argument, connecting one point to the next, in a linear fashion. Do not skip steps, even when they seem obvious. Treat your writing as a connect-the-dots exercise, taking your reader from point A to point B, from point B to point C, and so forth. If you connect each dot in order, then your writing will be clear.
Connecting the dots does not require being verbose. It is possible to be clear and concise at the same time. To make your writing concise, be as direct as possible. Structure sentences as "subject-verb -object," meaning use active voice. If writing is like driving a car, then active voice is like driving forward and passive voice is like driving in reverse. Sometimes you need to drive backward but not usually. Use passive voice if you do not know who the subject of the sentence is or if there is tactical value to obscuring the subject's identity. Otherwise, drive forward, and you will reach your destination faster.
To propel your writing forward, use verb forms of words rather than noun forms whenever possible. Using verbs, especially action verbs, will help you eliminate unnecessary words and phrases and make your writing punchier.
You also can make your writing more direct by attributing the parties' words and deeds to the parties themselves rather than to their papers. For instance, say that "plaintiff alleges" rather than "the amended complaint alleges," and say the "defendant argues" rather than "defendant's motion argues." Pleadings and motions do not have a will of their own. When I see writing that imputes human agency to inanimate documents, I imagine two bound briefs squaring off in an arena like gladiators. Sound ridiculous? Well, so does this: "The complaint contains no allegation that defendant engaged in any interference with plaintiff's contractual relationship." There is no need to say so much when you can say, "Plaintiff fails to allege that defendant interfered with his contract."
To keep your writing clear and concise, resist the temptation to reach for the third "C," "clever." Going for clever phrasing often results in the dreaded fourth "C," "confusing." Overly complex phrasing can be fun for the writer but does not help the reader.
Consider the following sentences. Sentence 1: "The cat sat on the mat." Sentence 2: "The mat was utilized for purposes of feline repose." These sentences mean essentially the same thing, but the first is more direct, shorter, and clearer. The second sentence is a quagmire. It may sound fancy, but because it is in passive voice, the reader must piece together what happened. The reader also must wade through extra words such as "purposes of" and must translate "feline repose" into plain English. It does not make sense to say "feline" when you can say "cat" or "repose" when you can say "sat." There is no need to make a reader work so hard to understand something so simple as a cat plopping down. Such unnecessarily complicated language will frustrate the reader, and a frustrated reader might stop reading altogether.
I recall a senior partner who edited one of my drafts focusing on whichever of my sentences I had thought most clever, reading it back to me, and asking, "what are you trying to say here?" I immediately restated the point in plain language, and he responded, "then can't you just write that?" Yes, I could, and you can too. If you do, your reader will thank you, then your client will thank you, and you will thank yourself.
Originally published by The Bencher—May/June 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.