June 22, 2024

Saluti Law Medi

Rule it with System

United States – Trials & Appeals & Compensation – Tips For Persuasive Legal Writing

Listen to the podcast here:

Lawyers are professional writers, and the ability to write
persuasively is more important than ever. In this episode, Luther Munford, an appellate expert and former
law professor, joins Todd Smith and Jody Sanders for an insightful
discussion on the principles of persuasive legal writing. Luther
emphasizes the importance of ethos, logos, and pathos in crafting
compelling arguments, while also advocating for brevity and clarity
to aid with comprehension. Drawing from his extensive experience,
Luther offers practical advice on structuring briefs effectively
and avoiding common pitfalls. Tune in for valuable insights on how
to present your case in the most persuasive way possible.

Our guest in this episode is a repeat guest, Luther Munford from
Butler Snow in Ridgeland, Mississippi. Luther, welcome back to the
show.

Thank you. Good to be here.

Luther was here for Episode 75. That
episode was entitled Four Decades of Appellate Practice, which
gives you a little background on Luther right there, back in
September of 2021, if you can believe it. Luther was a law clerk to
Justice Blackmun on the Supreme Court of the United States. He also
clerked on the Fifth Circuit. He is a member of the American
Academy of Appellate Lawyers.

He’s a former full-time professor and still teaches,
at least informally, because the reason why Luther came back to us
is because he gave a talk in my firm, Butler Snow, on persuasive
writing. Jody and I thought this would be a good topic to go
through with our readers because, considering what we do and what
our show is all about, persuasive writing is at the forefront of
what we do every day. Luther, welcome back. We’re super happy
to have you back and we look forward to talking with you about
persuasive writing.
Let me make sure I understand,
though. You’re still with Butler Snow, perhaps part-time, is
that right?

Yeah, the official title is Of Counsel. I’m not going to
court, but I’m doing the courts and things like this, doing
some writing for the firm and its publications.

It’s one good way, seemingly. It seems pretty
obvious to take advantage of the benefit of your experience,
especially being able to teach not only young lawyers but lawyers
at all levels because your class was on persuasive writing
internally was not limited to young lawyers. I think we can jump
right into the meat of the presentation. We’re not going to
turn over to you entirely. We’re going to make this interactive
like we usually do.

One of the things that you started off your presentation
with was reviewing the classical principles of persuasion because
we all know how to string together sentences, but what legal
writing is all about is about persuading your audience. It’s a
good idea to review those principles if you wouldn’t mind
taking us through them.

They come from Aristotle. The Greek terms are ethos, logos, and
pathos, but in plain English, it means the character of the writer
or speaker. That’s ethos. The reasoning that you use,
that’s logos, and then the appeals to the audience’s
emotions is pathos. We spend a lot of our time on the chain of
reasoning. They teach you in law school what issues rule analysis
conclusion, so forth, and so on, but it’s important to pay
attention to the other things as well. For example, the character
of the speaker, how does that manifest itself in writing one way is
whether or not you follow the rules.

If you’re brief doesn’t follow the rules, the judges
know the rules. They know the rules a lot better than they know
your case. That suggests that you’re not a careful lawyer and
maybe you’ve made a mistake in some other area as well.
There’s another potential problem that I never had my practice
and that’s social media. We’re accustomed to developing our
reputations, but we try to win cases for clients and participate in
bar activities and so forth and so on, but if you do something that
does not reflect well on your character for honesty and reliability
and so through media, that could hurt you. That’s something to
think about, too.

Emotions. The principal emotion that you need to worry about is
that the reader wants to understand what it is that you’re
writing. Brian Carter had a great little quote in the ABA Journal.
He said, “Good writing makes readers feel smart. Bad writing
makes readers feel stupid or at least confused.” I thought
that’s a good thought right there. It’s the case in the way
you present them and whether you put them in bold faces,
italicized, or something else.

The subject that I think is the most interesting to go into if
you want to pursue the emotional angle more than I can do in this
talk is to look up something called heuristics, which are the
mistakes people make when they’re reasoning. It is things like
you are more afraid of a risk. If you’re on the plaintiff’s
side, you want people to be afraid. If you’re on the other
side, you want people not to be afraid. You’re more afraid of a
risk if it’s man-made, if you can’t control it and if
it’s potentially catastrophic. For example, people are afraid
of flying a certain distance, even though driving the same distance
would not be safe from a statistical point of view.

Anyway, those are the three things. The character of the
writers, chain of reasoning, and such appeal to emotion as you can
make. You’ve got to get the court a reason for you to win.
It’s not enough to say, “I can parse this case and I can
parse that case and it’s distinguishable,” and so forth
and so on. You’ve got to do something to make the court be
confident that your side is the one that ought to prevail.

I was thinking in terms of the ethos, and you talked
about this in terms of knowing the rules and applying the rules,
that seems almost self-evident to appellate lawyers because
we’re taught to use the Blue Book to use proper site form and
cite cases correctly. If you don’t do that, then you’re
brief may stand out for the wrong reasons.

Does that fit with what you’re getting at there with
the writer’s character? You want the court to look at your
product. First of all, this is a brief. What does it look like
visually? Is it an attractive-looking brief? It seems like those
sorts of things, and going down to cite forums, lend themselves to
that credibility or character question before you ever even get
into your legal skills or writing or legal reasoning.

That’s correct. In terms of appearance, you also need to
think these days of the fact that judges are reading briefs on
computers and not paper.

Also, you’ve got these rules for persuasive writing
and it is helpful to hear about the classical principles because
some of us who took philosophy in undergrad, maybe we’re
exposed to these. The day in and day out of being a lawyer,
you’re trying to crank through the next brief or motion. Those
things are foundational to the persuasion principles. It seems like
they formed the starting point of where you begin to
persuade.

You get into the nuts and bolts of persuasive writing
that builds on those concepts. I think I’ll run through the
rules that you’ve identified and then we’ll get into each
one of those in detail as we go along in the conversation. The
rules that you list are knowing your audience, no surprises or
mysteries, form follows function, and then writing manageable
pieces. All those seem very logical to me, but I look forward to
diving into the details here. Let’s talk about knowing your
audience. You’ve talked about that a little bit already, but
let’s dive in.

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Thinking Like a Writer: A
Lawyer’s Guide to Effective Writing and Editing

First of all, these principles are things that I have derived
from a book called Thinking Like a Writer: A Lawyer’s Guide
to Effective Writing and Editing
by Stephen Armstrong, Tim
Terrell, and Jarrod Reich were published by the Practising Law
Institute. It is an excellent book. If you want to work your way
through it, it takes work. I’ve tried to distill what they say
into these four principles.

A lot of times, you hear people talk about writing and they tell
you tips and tricks and there’re 25 of them and you walk out of
the room and you can’t exactly remember what they were.
Hopefully, with only four, people who read this can remember those.
I will say when I give this talk to law students and people in the
firm, close to the end of the talk, I ask who can stand up and
recite the four principles without looking at their notes. I have
gotten people who could do it, but I think it was a useful
pedagogical technique to do that.

Good lawyers are known to rely on your notes, anyway.
There’s no harm in that.

Now we know, Jody, there’s going to be a test at the
end of this conversation.

Luckily, we’ve got a written outline. Todd and I
have a cheat sheet. Happy to be quizzed on it.

Knowing your audience. What’s your audience? Obviously, the
judge. You’re writing a brief for a judge. You’re also
writing a brief for a law clerk. They need to keep that in mind.
The different judges and clerks have different ways of approaching
their material, but that’s important. You’re all so writing
it for your client. Hopefully, your client will resist asking you
to put things in that you don’t think should be in there, but
the class view is important and you’re also writing it for the
public. If the case has any profile at all, you need to think about
the journalist who picks this thing up and understands what it is
that I’m saying.

The one thing that I have done to work on this the hardest is,
after a brief has been drafted, to get together a group of people
in the firm or elsewhere with different levels of experience who
hopefully don’t know much about the case at all and get them to
read it and tell me what they think. In fact, there’s a
technique I learned from Brian Garner, you all may have talked
about it, where you get people to do a 5-minute read, tell you what
they think, and then get to a 15-minute read and tell you what they
think.

That’s the way you can get some idea of how your audience
will react to this brief. You’ve lived with the things for so
long that you’re too deep into it. You have to take into
account what the reader already knows and what the reader wants to
know. How much time does the reader want to put into the brief? I
heard a talk one time by a judge named Mike Boudin. Mike is the son
of a famous civil rights lawyer from the ’60s, Leonard
Boudin.

Mike was editor of the Harvard Law Review, was a partner at
Covington and Burling, was prominent in the Justice Department, I
believe, in the Carter Administration, and became a judge on the
First Circuit. All of that is relevant because if anybody is a
perceptive brief reader, it would be Mike Boudin. He gave a talk
one time to the American Academy of Appellate Lawyers, and he said,
“Cases are a blur.” If they are blurs to Mike Boudin,
think about what that might mean for other judges who are not as
sharp as he is.

Talking about knowing your audience, I think about the
Fifth Circuit, where you’ve got 17 active judges and 3 or 4
senior judges who sit regularly, and you won’t know which three
of those are going to hear it until seven days before. When
you’re writing a brief to a court like that, when you say you
know your audience, what are you thinking about?

You can’t know what the audience is from a philosophical,
ideological point of view. There are certain rules. The Supreme
Court precedent is the most important. This Circuit precedent is
second. If you can have a good Supreme Court case or a good Fifth
Circuit case to illustrate your point, you put that down, shut up,
and go on because nobody wants to look up a strength site.
Sometimes you don’t have this case but certainly from the Fifth
Circuit, that’s what they want to see.

That’s a classic example of knowing your audience
and we see this state court practice in Texas and we’re not
sure it’s the same everywhere else. I tell our young lawyers,
“If you’re writing a brief in the Austin Court of Appeals,
you better be looking for the Texas Supreme Court Authority or
authority out of the Austin Court of Appeals,” because that
court’s not going to care what, with apologies to Jody, the
Fort Worth Court of Appeals is thinking. That seems like a good
illustration of that concept.

I’m not on the Fort Worth Court.

Not yet.

Of course, when you go to argue in the Fifth Circuit, you can
look around when you do get the notice of who’s going to be on
the panel. I did have the unfortunate experience one time of doing
that and discovering a case, which should have been my brief and
the aggravating problem was that it was my case twenty years
before. That was not a pleasant experience.

It seems like that’s a great point, knowing your
audience. We’re here to talk about persuasive writing, but when
it comes to persuasive advocacy as a broader concept, once
you’ve moved past the brief. You’re looking at making your
argument to the panel. You’ve identified who the panel is, then
that exercise of knowing where each member of your panel stands on
the issues that you’ve presented in your brief would be very
beneficial.

I’ll tell you one other thing about the Fifth Circuit. I
think that in an ideologically charged atmosphere, if you’ve
got a good state issue, you may want to press that more than a
federal issue because a federal issue obviously would apply to the
whole circuit and might have some aspect to it that would be
unpalatable to a judge who would accept that you had correctly
interpreted state law.

You have some specific tips, Luther, related to knowing
your audience that you talked about in the presentation and you
start with knowing the rules. We’ve gotten into that already, I
think. One thing that I think is a common issue in dealing with
whether you’re right in briefs for the Fifth Circuit or any
state court is how to refer to the parties. I think the
conventional wisdom is to avoid using the party’s technical
positional names, appellate annapoly and so forth. Any other
guidance to offer on that?

All you have to do is think about how confused you were in law
school when you first read those terms and what petitioner and
plaintiff and error and all that stuff meant and realize that
you’re a lot better off. 28 D says you’re supposed to use
actual names of the designation used in the lower court. Related to
that is how you refer to parties or statutes, whether you use
initials or first name. I suppose it depends on what side of the
case you’re on and how you might want to go with that.

The whole point is to make it easy for the reader to understand.
Since we’re talking about Texas or this is a Texas show,
there’s a related subject called proofreading. After he left
the Fifth Circuit, Judge Thomas Gibbs Gee went into private
practice and I had the opportunity to work with him. He gave me
some advice that I have used and like to pass on and that is when
you get to the end of the process with your brief, run it off in a
different typeface. You will be amazed at how many times you can
pick up something that you missed because you looked at the things
so many times that you don’t catch everything. However, if you
run it off at a different typeface, a lot of times, you can catch
something that needs to be caught.

That’s a great one because I feel like I always
catch mine when I read it on PDF after filing. There’s always
something. I think there’s something in the e-Filing system
that does it. I’m pretty sure it was not wrong when I did
it.

That’s a good time. I’ve yet to do that, and I
think I need to start doing it. Even if I’m doing a lot of my
proofing on screen, it would still be a benefit to look at it in a
different font.

I think so.

Another sub-topic of this is brevity.

That’s right. It goes to the reader wanting to get to the
point without a lot of folders. When I thought about the statement
of facts, for example, is to go ahead and write the argument and
then figure out what one of the facts you need for the argument and
go back and do the facts rather than sit down and tell the whole
story. Once you’ve written something down, it’s hard to
change it.

That’s a very practical piece of briefing advice
because it’s always hard to know where do I start. I’d be
curious about, Jody, how you approach this, too. I do follow the
approach of you want enough facts, then you give the court the
facts that needs to decide the case, but not an excessive amount of
facts. A lot of times, I will maybe do a preliminary draft of facts
and then I’ll go back and add a sentence or two here and there
after I have written an argument. I think that the idea of writing
the argument first and then drafting the statement of facts to make
sure that you give the court exactly what it needs and no more no
less is a smart approach.

That’s typically how I write. I usually write the
argument first and then come back and do the facts. After that,
I’ll do the argument then I’ll do the facts. I’ll do
the summary of the argument introduction in the issues. In fact,
the issues and the summary of the argument or introduction are
usually the last things I do.

One practical question that comes out of that is how do
you deal with a client or co-counsel who wants to tell the whole
story? The Fifth Circuit can’t possibly understand this case,
Luther, if it doesn’t understand everything we went through to
get to where we are.

That is a distinct problem. You didn’t make that up.
I’ll give you one little story. When I clerked in the Supreme
Court, there were anti-trust cases. The lawyers were FAO Schwarz
for one party and Amalya Kearse, who later became the Second
Circuit judge, for the other party. Schwartz was from the Cravath
firm in New York. There were no limits at that time on the length
of briefs in the US Supreme Court. You could write all you wanted
to. Mr. Schwarz submitted something like a 200-page brief. The
normal custom was 50 or 60 or so forth.

He did not win the case. I didn’t talk to the justice about
how they voted and why they voted or anything else. I have to feel
that looking at a 200-page brief may have put somebody off a little
bit. In fact, there’s another story. I worked on a case that we
thought was the most insignificant case of the whole term called
National Muffler Dealers Association versus the United States, and
it had to do with whether the National Muffler Dealers Association
could get a tax exemption when they were all modest muffler
dealers.

I’ve even forgotten how the case came out, but it was based
on a treasury regulation. The considerations were something like
the Chevron doctrine that is before the court now. Justice Blackmun
wrote this opinion and Justice Stewart descended. I thought,
“Why in the world would Justice Stewart descend?”
It’s an insignificant case. His court told me he got mad
because the government cited a series of regulations and left out
the one that was against him. Another admonition for accuracy and
honesty.

That ties into another point that I believe you made in
the other presentation. You can’t ignore facts that are bad for
you. If they’re relevant, there’s got to be a way of
dealing with those in the statement of facts.

Also, one thing, this is actually in our briefing rules
here in Texas. Avoid being argumentative in the statement of facts.
I go out of my way to be passionate, maybe to a fault and I notice
when I’m reading my opponent’s statement of facts when they
are working in flat-out argument, and their statement of facts it
stands out to me.

There are times when I will actually object to the
opponent’s statement of facts as being argumentative because it
is in breach of a rule. That’s something else obviously
important to keep in mind, which is what you’re trying to do.
The statement of facts set the case up for the court. That’s
part of knowing your audience.

Persuasion is your selection of facts.

To answer my own question about what if the statement
effects seem too short or incomplete, the court doesn’t need to
hear the background, the whole story to decide the issues. If you
feel like you need to expand on facts, you can always do that in
the argument section of your brief. We talked a little bit about
issues, but I want to dive in a little bit more on the statement of
issues. What are your thoughts on best practices with issues,
Luther?

I once heard a very good appellate lawyer, Barrett Prettyman,
talk about the statement issue. He said apropos of judges being
busy, his current fear is judges weren’t reading anything else.
That was extreme, and I’m sure he didn’t mean that, but it
highlights the fact that the way you start the issue is important.
Ideally, you’ve got the legal issue. You’ve got some key
facts. Did you read them in accordance with the standard of
review?

When I put this talk together, I went and looked at some of the
Supreme Court briefs in the Rahimi case, which is the case about
constitutionality under the Second Amendment of the statute, which
says somebody who’s been found to have been a domestic abuser
can’t carry a gun. I thought the government did an excellent
job staying the question, which was whether the statute by number
that prohibits the possession of firearms by a person subject to
domestic violence protective orders violates the Second Amendment
on his face. Got it all right in there.

I think that’s an illustration. It also points at something
that certainly I never had, which is that if you want to reach some
good briefs, go to the US Supreme Court, go to a website, and get
some US Supreme Court briefs particularly those written by the
solicitor general. When I clerked at the Supreme Court, I worked
with Chuck Cooper and also a guy named Carter Phillips. They clerk
for other justices. They’ve both become Supreme Court
advocates. I put them in this outline and sent it to them and there
was an objection as to which one was listed first, but it was all
in good fun. They are both very good brief writers and I would come
in their briefs.

You brought up Brian Garner once or twice earlier and
the whole issue of drafting makes me think about Garner’s
approach to that. There are different schools of thought because
the way you do it is basically one sentence that ends in a
question, weaves in some facts, and helps frame things. Garner
believes in what he calls the deep issue, which can be as many as
about three sentences, maybe more. I think they’re strong
feelings about this on both sides. The advocates for deep issues, I
don’t hear those speaking out as strongly as I do, the folks
that say, “Frame the issue properly, but you don’t need to
write a page on each issue just to state the issues.” What do
you think about that?

The competing values, on the one hand, and brevity on the other
hand, you’re afraid that the court might not pay careful
attention to your text and maybe you better put it in the statement
of the issue. The subject of repetition in briefs has always
interested me. The advertising people tell you that repetition is a
way to persuade people. There’s got to be some truth to that.
Obviously, you get judges and others who complain about repetition
and briefs. You’ve already said it. Why are you telling me
again? I think the answer is that you can repeat your concepts in
different ways depending on where you are in the brief without
making it without putting off the reader by saying I’ve already
read this one time before.

I suppose that plays into your argument headings and how
much depth you should go into an argument headings. I see some long
ones sometimes. They seem to me to be more effective. If
they’re exceeding two lines, it is probably bordering too long.
That would be my cut-off. It seems like you could run the risk of
repetition, but repetition and argument headings don’t seem to
be a bad idea because judges read those and they read the issue
statements.

It’s like Brian says, you don’t want readers to feel
stupid or confused and the longer you make it, the more like it is
somebody’s gotta be at least confused and not feel stupid.

Did he write that recently? I don’t think I would be
able to say that.

Yes. It’s in the ABA journal December January 2023 –
2024 issue, page 21, so look it up.

Todd, to your point, I think when you have the longer
issues and the longer headings, a lot of times, it seems to me, as
a reader of other people’s briefs, it’s maybe a failure to
think how you can shorten it a little bit. That’s what it feels
like to me. If you can think through it, there’s usually a way
to make something shorter and still make the same point. I always
find myself coming back on the second or third go-round on a draft
and do exactly that. This seems to go on for a while. What am I
trying to say here?

Yeah, it’s amazing how helpful sometimes the lengths limit
on briefs could be.

That leads also to at least a brief mention of the
editing process, whether it be self-editing or getting someone else
to read your product before you send it off to the court.
That’s how it is for me. I will read things that I’m like,
“I’m not sure I’m getting my point across here.
I’ll keep working on that a little bit.”

I did an important brief not too long ago and gave it to some of
the editors in the firm. I was representing the appellate, and one
of them said, “What if the trial judge reads it wrong?” I
knew I needed to revise my brief.

We’ve been using word processing to write briefs for
a long time. You mentioned that judges are reading briefs online
more and more. Are there specific approaches or techniques that you
think ought to be considered to help make briefs be more
persuasive?

One thing I’ve read and used a bit was this digital or
scientific numbering instead of saying Roman numeral one capital A
sub 1, 2, 3 using the 1.1, 1.2, 1.2.1, 1.2.3 so forth and so on.
What that does is all you have to do is look at the heading, and it
will tell you where you are in the brief. If all you see on the
page is A, you don’t know if it’s A, Part 1, A Part 2,
where A comes in. If you see 1.2.1, then you know where you are.
It’s a small thing and not many people do it maybe they thought
it unusual, but I don’t think it’d be confusing, so why not
do it?

I haven’t done that. I haven’t seen any of my
opponents do that in their briefs, but it has a lot of logic. I
think what I have seen done is a general break from the Roman
numeral 1A sub 1 style in part because it doesn’t line up with
if you have issue one, with Arabic one, and then you outline, you
see Roman numeral one on the same page. There’s something
inconsistent about that to me. I wonder if I’m going to have to
think about that, Luther. If you’ve used that approach, have
you ever had anyone say, “I don’t like that, Luther. I
want to go back to Roman numerals?”

No. It’s a large universe of readers. That would be a very
interesting question to put to the judges. When they see it, what
do they think about it. If they could tell you that, it
wouldn’t involve any great secrets or court confidence.

Anything you can do to make it simpler and easier to
follow? My sense is that judges would generally be in favor of
that. We have to get the US Supreme to stop using Romans in their
opinions. Good luck with that. We’ve got a few other topics we
want to cover but is there anything further on knowing your
audience? I think we’ve covered the waterfront largely on that
topic.

I think so.

The next topic was no surprises or mysteries, and I
can’t wait to hear what you have to say about
this.

The point is that people absorb information best if they
understand its significance as soon as they see it. The most
familiar example, I suppose, is the topic sentence and paragraph.
We all know our paragraphs are supposed to have topic sentences.
The reason for that is the topic sentence tells you what to expect
and what the sentence is about. These principles applies to the
document as a whole to the paragraph and even to the sentence. For
example, on the brief, they say to do what most people probably do
these days anyway, but that’s to provide a focus at the
beginning of the brief.

Basically, say what it’s all about in some map paragraph.
The client should prevail because of A, B, and C and then go
through your brief. Explain why B and C are right. It is not an
appellate brief, but a trial court brief. I think frequently,
people waste a lot of time getting to the point and don’t put
it in the beginning. They say, “In accordance with the federal
rules of civil procedure, the defendant boosts for partial summary
judgment regarding the claims of John Smith as follows.”
What’s the motion about? You don’t know.

Say we move for summary judgment, this claims of plaintiff John
Smith because he’s the father of the plaintiff’s daughter
and he didn’t witness the daughter’s abduction. Tell them
what it’s about. Get to it. In the paragraph, obviously, you
have your topic sentence or your paragraph. Interesting, though,
even in the census, they suggest sometimes, if you have one
sentence, the next sentence may want to include some part of the
first sentence so it’ll fall better. “The court said A, B,
and C with respect to A, the court said so and so.” Keep it
flowing.

In any event, the structure of the brief ought to be explicit,
which, of course, has to do with the table of contents as well as
other parts of the brief. I will say that one time, I had a case,
the statement regarding oral argument. Is this a circuit
requirement? I was able to get to the point very quickly because my
statement regarding oral arguments says that the court has
resolved. The case involves this issue and the court has recently
resolved this issue twice in favor of my client’s side of the
cases. That’s basically all I needed to say. When the opinion
came out, that’s basically all it said, even though, of course,
I submitted a whole brief.

Another thing that comes up is describing cases. Before you
recite the facts of a case, it’s helpful to tell the reader why
the case is important, to have some language that instead of diving
into the case and making the reader try to figure out why the case
is important. It’s a topic sentence principle applied to a
paragraph that describes the case.

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Persuasive Legal Writing: It’s
helpful to tell the reader why the case is important before you
recite the facts of a case.

I like that because, so often you do see somebody launch
into, “In Smith versus Jones,” and then you have a
paragraph of what the case is about without ever having a clue
necessarily about the significance of it, unless it’s a
landmark case of some kind that anybody would know. That’s very
helpful. I actually needed to hear that myself. You talked a little
bit in your firm presentation about throat clearing. Can you tell
us a little about that, how to avoid it, and why we
should?

That’s the example of starting off with some lengthy
description of the fact that you’re moving for summary judgment
and giving some facts and what the complaint alleges, and then only
then talking about what the issue actually is in your case.

I think Garner also uses that phrase, but I think he
uses it a little differently because I think he uses it in
reference to specific phrases that we tend to over-rely on. It may
not or may not become now and all that good stuff that a lot of us
have been taught not to include in briefs anymore or legal
pleadings.

I always think about dates. I feel like when you start
reading and brief, “On April 1st, such and such. On July 2nd,
such and such.” You’re reading it, putting this timeline
together, and then you get to the end and realize, “I
don’t know why I needed to know about any of those dates.”
What did you do? Does it matter when you did it or the fact that
you did it? Another example of throat clearing is you get into some
excessive information and extraneous facts that don’t drive the
narrative.

Judge Thom Reavley, Fifth Circuit, gave a speech one time. I
heard him talking and he said, “If you want to tell somebody
how to get to the courthouse, you tell him to go outside, turn
right, go three blocks, and you’re at the courthouse. You
don’t tell him, ‘Go outside, look up in the air. Take a
left, take a right, take another right, then take another left, and
you’ll get to the courthouse.'” I thought that was a
good illustration. By the way, I’ll throw this in. I clerked
for Judge Paul Ronnie, who was in Florida and on the Fifth Circuit
at that time. I came much later in life to learn that right after
World War II, there was a Harvard Law School Moot Court competition
which included Judge Ronie, Judge Reavley and Judge Gould. In other
words, 3 of the 4 made it to the Fifth Circuit.

I love that you’re able to intersperse these little
stories in the mix because we don’t get to hear this stuff all
that much and that’s good. All right, so no throat-clearing.
You talked about visible patterns in writing. I don’t think I
don’t remember that we said this out loud, but one of the
things that it’s a common technique that we use here in our
state is to use the table of contents and headings to actually
reveal the structure of the brief and reveal at least something of
the substance of the argument.

That’s what the US solicitor general does.

That’s what I do, too. I like to have a table of
contents that you can pick up and read and get a pretty good
roadmap of where you’re headed, start to finish and at least
get a general idea. That way, I feel like I don’t necessarily
have to have the deep issues because you can glean it from the
table of contents, even.

Nobody’s going to complain about repetition.

I think we’ve said several times before on our show
that if you don’t include that information and present it
correctly, including the statement of the issues in the table of
contents, you’re missing out on your first opportunity at
advocacy. A lot of judges are going to turn and read the table of
contests before they read anything else. I see it still all the
time and at all levels of practice that people leave their issue
statements out of the table of contents. That’s pretty
fundamental, but you want to include that.

They teach us that the first thing you say is important in
persuasion.

I think that covers the no surprises or mysteries. Next
is form follows function. We talked a little bit about topic
sentences already.

The biggest one here is that each thought should have a separate
paragraph. You don’t want to overdo it, but there’s nothing
wrong with the one-sentence paragraph if that’s all you’ve
got to say about that subject. When I clerked at the Spring Court,
I felt we would get briefs that had 1-page, 2-page paragraphs. As a
clerk, I had to work to figure out what the points were that the
person was trying to make. If they broke in the paragraph down into
each that they never try to say, it would have enhanced my ability
to put whatever thoughts they were trying to convey into the memo
that I was giving to the justice. I think that it’s important
to do that. We’ve got a word count. Have a little extra space
between paragraphs. That doesn’t hurt you at all.

It’s not necessarily in legal writing, but one thing
I have noticed in different kinds of reading is the tendency and
the trend going the opposite direction where you’ve got a whole
bunch of 1 or 2-sentence paragraphs. I think some of that is
written for people reading things online and tends to be more newsy
or informational. I haven’t seen this creep into legal writing
yet, but I’m not the biggest fan of the one-sentence paragraph
if it is connected to the next sentence.

I’m glad you said that, Todd, because you and I are
in agreement. I feel like a one-sentence paragraph is either
missing something or cut off from something else. I can get by with
2 or 3, but o1ne doesn’t feel right to me.

You don’t want to overdo it. You don’t want it to look
like the cartoon called Hambone’s Meditations. It had
individual pieces of advice together. I will say, however, that I
once saw what I thought was an excellent brief by Mike Tiger, who
did some of that and it carried a punch.

Staying on the topic of form, follow, and function,
leading your reader down the logical path, there’s one idea and
this applies more in maybe the appellee’s context. How much are
you responding to what the other side is saying? Is it necessary to
address their argument in the same order in your brief? What do you
think about that, Luther?

It’s certainly not necessary. You need to provide some way
that somebody reading the brief can understand that you have
responded to everything you needed to respond to. It’s not
necessary and if their third point is you think is your strong
point and you make it first, that’s not a big problem. One
problem I do see is the tendency to say, and I’ll use an
appellate and appellee to make it clear, “The Appellate says
X, but Y is true.” Your topic sentence for your paragraph is
the Appellate says X.

The first impression when you read that is that X must be right,
but I’ve got to think it’s not right. I think you ought to
start your paragraph by saying, “Y is true when the opponent
says X.” That’s wrong. Do you see what I’m saying?The
topic sentence ought to assert your position, not your
opponent’s position, even if you were responding to the
opponent’s position. It’s promising. I think it’s
easier to understand and more persuasive.

1462490d.jpg

Persuasive Legal Writing: If you
were responding to the opponent’s position, the topic sentence
should assert your position, not the opponent’s. It’s
promising, easier to understand, and more persuasive.

I’m going to have to try that because I gravitate
toward the wrong way, apparently. If I’m responding to what
somebody else is saying, like, “Here’s what they say.
Here’s what we say and here’s why they’re wrong.”
It sounds like I need to flip that order.

Start off and say they were wrong when they say X and they are
wrong because of 1, 2, 3. I think it’s stronger.

This time spent together is worth the price of admission
right there because I got a great briefing tip I can Implement now.
I appreciate that, Luther. You talk about a few other points about
write your brief including the order you did the research or
listing case law and chronological order if it’s not
important.

I think those are great points unless you’re tracing
the development of a line of case law or something like that. It
would seem like that latter observation would not be necessary.
What about typography? I think you give a couple of examples of
what it looks like when you say typography, you’re mostly
talking about easy devices to compare and contrast arguments like
tables or something like that.

Get to arguments quickly, one, which I picked up from a Fifth
Circuit seminar many years ago, was to show that one case controls
the case it was before the court. They listed the important parts
of the decided case, 1, 2, 3 down one side of the page and then the
other side of the page said this case and the facts here are 1, 2,
3 the same thing. I think that makes it easier to compare the two
rather than have, “In the prior case, the court said 1, 2,
3,” and longer paragraphs.

Another thing about typography depends on, obviously, what
you’re trying to do, but if you got a statute of limitations
case, you may want to put in some chart rather than reciting the
facts when things happened and when the statute ran and so forth
and so on. Do a little chart. It makes it easy. The whole thing is
to try to make it simple for the court to understand.

We are now seeing more and more visual representations
of bits or facts in briefs. I think it helps streamline and
simplify, and it’s not a weakness. It’s not like you
can’t write a sentence that describes all these things. Maybe
your English composition professor, as an undergrad, would not care
about that approach. I think in court, when you’re looking at
the date of the discovery rule kicks in or the claim accrues in
comparison to the date that limitations expire and the date they
brought their lawsuit. Those seem like manageable bits of
information that would present well in that format. Our last big
topic for persuasive writing is writing and manageable pieces. We
talked a little bit about some of the already shorter paragraphs
and headings. I think you mentioned bullet points, Luther. What
other advice would you give our listeners about how to write
manageable pieces?

One thing is actually using active verbs and not nominalization
or what you might call gerundification. I heard a great talk one
time about Tim Terrell’s book where it said if a lawyer was
asked to write the story about Little Red Riding Hood, there’s
a big chance that the lawyer would say, “Once upon a time,
there was a walking in the woods on the part of Little Red Riding
Hood,” instead of saying, “Once upon a time, Little Red
Riding Hood walked into the woods.”

The issue there is turning the verb walk into the gerund walking
and the verb being was, which is a weak verb. One thing you can do
is go through what you’ve written and see if you’ve got
some gerunds that maybe could be made to active verbs. It’s not
a big thing, but there are studies that show that plain English is
more persuasive than lawyer language. That’s what we need to
aim for.

I think we’ve made a lot of inroads in that area. A
lot of us, especially lawyers coming up now, what they’re
taught is good legal writing is far different than what was taught
when I was in law school in the ’90s. It’s gotten better. I
remember even after law school. It was when Brian Garner was first
coming up and the idea of using active verbs and active voice in
writing was starting to take hold. Once you realize, if nothing
else, the ability to eliminate unnecessary words. It can tighten up
a brief. I see it in a lot of legal writing, you got a lot of words
in here that don’t add any meaning to your
sentence.

It’s because it’s much easier to write them than
it is to come back and edit them out. It’s an editing process.
It’s maybe a failure of the editing process that more of those
aren’t eliminated. I know one of the topics that you wanted to
get into is the circuit briefing service. One of the nice things is
even though you’re in Mississippi, we’re in the same
circuit. We share the circuit court and a Court of Appeals. A lot
of our readers will be familiar with some of the things that
we’re talking about here. Tell us real quickly what we’re
getting at when we’re talking about the circuit briefing
service. What it is? What are your observations about
it?

I’ve said that looking at US Solicitor General Bruce has
good writing. Unfortunately, looking at the case summaries that are
distributed by the Bar Association of the Fifth Federal Circuit is
generally an example of bad writing. Let me talk about the points
that I’ve made. Who’s the audience? The audience are
lawyers who want to know whether a Fifth Circuit case is relevant
to their practice or not. The typical Fifth Circuit Bar Association
summary, in fact, I’ve got one in front of me, is written in
chronological order.

It’s 27 lines long and you don’t find out the real issue
in the case until you get to the 17th line. Even the summaries done
by our Mississippi Law Journal, which I think have their own
problems, start by telling you what the issue is in the case, which
is appellate jurisdiction. For example, that was the issue in this
case. It’s a very interesting case about a notice of appeal
being filed and not depriving the district court of jurisdiction to
transfer to another district. You don’t find out any of that
until you get way down.

There are surprises. You don’t know why you’re reading
through these 17 lines until you get down to the 17th line to find
out what’s going on. It’s all one paragraph. It could be
two paragraphs. For example, if the first 16 lines, 1 paragraph,
and line 17 was a new paragraph, then your eye would immediately go
to the topic sentence of the second paragraph if you know what the
cases are about.

It’s 27 lines long and contains a lot of information that is
helpful to know but is not that pertinent to the case being held,
which I say is a very interesting point about appellate
jurisdiction. I hope that the Bar Association will address this. I
find it ironic that the Bar Association sponsors good seminars
about how to do legal writing. They published good articles about
good legal writing, but their own product simply is not consistent
with what I believe are the generally accepted rules of good legal
writing. That could save us all a lot of time if they change.

I appreciate you bringing that up and willing to share
that opinion. Hopefully, the right folks read this and take it to
heart. It is a valuable service that they provide but there’s
always room for improvement and all of those in our writing. If
it’s not keeping up with what ought to be basic principles of
writing for your audience and getting to the point quickly and so
forth, I think that’s a fair criticism that I hope helps bring
about some change.

Luther, we appreciate this. especially you coming back a
second time. The third time, you get a show jacket. Todd and I
haven’t designed it to figure out what that looks like for you.
I’m thinking, since you’re in Mississippi, maybe something
more of a Master-style jacket with a Southern look. I don’t
know. Here in Fort Worth, they do the colonial jackets a red plaid.
We’ll think about it.

I will tell you that when I clerked in the Fifth Circuit, I went
through all the arguments in Houston and in Fort Worth and it was
surprising to me, it won’t be to you, but in Houston, the
lawyers dressed like they were in New York, and Forth Worth, they
all had on cowboy boots.

That’s still tracks now, actually. This is all so
good and so many good tips and things that you think about but
forget and it’s nice to have a refresher no matter where you
are in your career. I think we get so put into our writing patterns
and style that it’s nice to have someone break those up a
little bit. Our tradition is to always close with a tip or a war
story and you have given us several of both, but I don’t know
if you’ve got anything else left you want to leave us with, and
if not, that’s okay, too.

I don’t think so. I think I’ve shared everything I had
to say on this subject.

That’s great and you shared a lot of great stuff. We
appreciate it.

I’m glad we didn’t leave anything on the table
in this episode, Luther. We appreciate you coming back and sharing
your decades of wisdom with us. You pointed something out that I
hadn’t thought that much about. One of the reasons why we do
this show is to not only help other people learn about things that
they don’t necessarily know about, but we like to learn new
things ourselves. We are grateful for your instruction on this. We
sure appreciate it.

No, you’re very welcome. Thank you for inviting me.

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