Compelling Arguments in Briefs

Bard of the Bar

Oct 8

“He draweth out the thread of his verbosity finer than the staple of his argument”
Love’s Labor’s Lost, V,1; Holofernes regarding one of the King’s companions

Let’s talk about arguing. (Much more productive than arguing about talking.) You need not emulate Shakespeare to write a good argument in a brief. The last thing you want is judges arguing for centuries over what you mean. When it comes to clients prevailing, it’s better to be mortal. State the legal rules that apply, apply them as simply as possible, and hope you haven’t puzzled the judges too much.

That is not to say that you should not be deliberate in your word choices. You should. Build enough time into your brief-writing process to put the brief down after you have written the statement of case and facts before you write your argument. The time spent away will allow you to choose your words carefully. Craftsmanship comes only when the work is at least 90% finished. That last 10% makes all the difference between a mediocre brief and one that can anchor the court on your side, or, as Mark Twain put it, “the difference between the lightning-bug and the lightning.”

Here is an example of an evocative word choice:

“[N]otwithstanding her twenty-one years of loyal, ‘outstanding’ services, Harrah’s terminated Jesperson’s employment. Nothing else mattered if she declined to paint her face.”

Jesperson v. Harrah’s Operating Co., Inc., 444 F. 3d 1104 (9th Cir. 2006), reply brief of appellant Jesperson

Amicus counsel countered with an equally effective word choice in their brief. They argued that employers should be able to maintain appearance standards and followed with a parade of comic horribles:

“…employees who sport jewelry like Mr. T, wear makeup like Gene Simmons or Kiss, dress like Dennis Rodman, have hair like Fabio, or beards like a member ZZ Top.” Id. (citing brief of amicus counsel)

Both lawyers did an excellent job of evoking vivid images for the judge to consider the legal issue in that case. Not every case provides an opportunity to elevate the writing to such vivid images. But don’t miss the opportunity try to do the same. Let your editor, if you have one, tell you if they think you have gone too far.