Mnrtuc Youn Case: THe ART or PeRsuaorNcJuocns Briefng

not have much time for; or perhaps (if you are suPPorting
the appellee) to defangaparricular amicus brief Êled on WritingStyle
behalf of the appellant. Our constant injunction of brevity
has special force herq since not even the demands of duty 39. Value clarity above all other elements of style.
drive judges to read amicus briefs that are bloated. Make In brief-writing, one feature of a good style rrumps
the one or two points (preferably one) that you think will all others. Literary elegance, erudition, sophistication of
contribute something important and new-and close. expression-these and all other qualities must be sacri-
frced if they detract from clarity. This means, for example,
rhat the same word should be
used to refer to a particular key "All the careful strategy in the world
will be ofno assistance to you
concept, evenif elegance of style unless you write clearly and force-
would avoid such repetition in fully. And darity and powerare
above all the fruit of simplkity."
favor of various synonyms. It
R. Kaufman
means that you must abandon -Hon.lrvinq

interesting and erudite asides if they sidetrack the drive

toward the point fou are making. It means thar you should
never use a word that the judge may have to look up, It
means that nothing important ro your argumenr should
appear in a footnote.
Further, ir means shunning puffed-up, legalistic lan-
grage, Make your points and ask for your relief in a blunt,
straightforward manner.
Wrongr The undersigned counsel do hereby for and on
behalfoftheir clients, for the reasons explained
hereinbelow, respectfully requesr that this Honor-
able Court consider and hereby rule that no issues
ofmaterial fact do exist in the instant controversy,
and that a Ênaljudgmenr be entered in favor ofrhe

106 107
 Mexrruc Youn Cese: THs Anr op PeRsuaotNcJuoces Briefng

client of the undersigned counsel (sometimes herein

The section headings in a typical appellant's brief might
referred to as "Defendant" or "Cross-Plaintiff") and
against Plaintiff. read as followsr
Right: Johnson requests entry of summaryjudgment. 1. The four-year statute of limitations bars this action
because Bartleby waited six years to Êle suit,
Clarity is amplyjustiÊed on the ground that it ensures 2. Two essential elements of fraud-intent to deceive and
you'll be understood. But in our adversary system it. per- detrimental reliance-were not established.
forms an additional function. The clearer your arguments, A. The record contains no evidence of an intent to
the harder it will be for your opPonent to mischaracterize deceive.
B. The record contains no evidence of detrimentalrclí-
them. Put yourself in the shoes of a Lawyer confronting an
eîce.
opposing briefthat is almost incomprehensible. You struggle 3. Conclusion,
to Êgure out what it means-and so does the court. What
TheoreticaLly, eachof these headings could be further bro-
an opportunity to characteúze the opposing argument in
ken down into subheadings. Every argument, for example,
a.way that makes it weak!This cant happen to you-your
could be divided into (1) major premise, (2) minor premise,
opponent will not be able to distort what you say-if you
(3) conclusion, and (4) refutarion of opposing arguments.
are clean
But such excessive subdivision clutters more than clari6es.
40. Use capt¡oned sect¡on headings. Avoid overkill.

Many court opinions dispense with captions for sections 41. Use paragraphs intelligently;
and subsections, relyingon numbers and letters alone (I, s¡gnpost your arguments.
II, and III; A, B, and C within each). Whatever the value Section headings are not the only means of mapping
of that practice in opinions (and even that is question-
your argument. Within each captioned section, pangraph
able), it's not a good approach for briefs. Since clarity is the
breaks perform the same function. The trst sentences of
all-important objective, it helps to let the rcaåer know in
paragraphs (your Êfth-grade teacher called them'topic sen-
advance what topic yottre about to discuss. Headings are
tences") are as important as captioned section headings in
most effectiveif they're full sentences announcing not just
guidingyour readers through your brief--telling them what
the topic but your position on the topic: Not "I. Statute of
next thought is about to be discussed. Paragraph breaks
Limitations" but "I. The statute of limitations was tolled
should not occur randomly, inserted simply because the last
while the plaintiff suffered from amnesia."
paragraph'ü/as getting too long. They should occur when

108
109
 Briefng
M¡rtNc Youn Case¡ Tr¡e Anr or PeRsueplNcJuocns
one. Or you might have used a subordinating conjunction:
you are moving on to e new subpoint and wish to signal a
'Although he is not agreat sprinteç he came in third."
change of topic.
There are many such guiding words and phrases: lnore-
One writer on brieÊwriting (who must remain nameless)
over,howeuer (prefenbly not at the head of a sentence),
suggests that no Paragraph should be more than Êve sen-
--1 rences long. We think that's bad ølthough, on the other hønd, nonetheless, to prove the point, etc,
"The topic sentence.. . smooths These words and phrases turn the readerb head, so to speak,
advice. Your readers didnt make
the way ffom paragraph to para-
graph by binding that which has it to the bench by reading only in the direction you want the reader to look. Good writers
been said to that which is going use them abundantly.
Classic Comics.Judges are accus-
to be said. By hooking the previ-
tomed to legal argumentation, Normally, rhevety best guiding words are monosyllabic
ous series ofideas to the coming
conjunction s: ønd, but, nor, or, so, and yer. Professional writ-
ong it provides momentum." which often-indeed, usually-
Kent ers routinely put them at the head ofa sentence, and so
-Sherman requires more than Êve sentences
should you. There's a myth abroad that you should never
to develop an idea. Use as many sentences es the thought
begin a sentence with a conjunction. But look at any spe-
demands. If rhe pangraph is becoming unusually long (say
cies of reputable writing-whether it's a good newspaper,
epage of your búeQ, break the idea into two paragraphs
journal, novel, or nonÊction work-andyou're likely to Ênd
if possible. (!f 'Another facrcr leading to the same conclu'
several sentences per page beginning with one of those little
sion . . . .") Some ideas will take only 6ve sentences-indeed,
connectives. You can hardly achieve a flowing narrative or
some may take only three. But a brief with paragraphs of
argument without them.
rigid\y uniform length is almost sure to be a bad brief, Use
what it takes.
42. To clarify abstract concepts, give examples.
In helping the reader follow the progression ofthought-
both between and within paragraphs-guiding words are Legalbriefs are necessarily Êlled with abstract concepts
essential. Consider the difference between the following that are dif6cult to explain. Nothing clariÊes their mean-
tv/o progressions: (1-) "He is not a great sprinter. He came in ing as well as examples. One can describe the interpretive
third." (2)"Heis not a great sprinter. But he came in third." canon noscitur a sociis as the concept that a word is given
The word "bui'signals that the next thought will somehow meaning by the words with which it is associated. But the
qualify the pointjust made. Or your second sentence might reader probably wont really grasp what yoarctalking about

have been "After all, he came in third"-the"After all" sig- until you give an example similar to the one we gave earliett
niÊes that the upcoming thought will af6rm the previous 'þins, staples, rivets, nails, and spikes." In that context,'þins"

111
110
 MerINc Youn Cese: Tne Ant or PsnsueorNcJuoces Briefng

couldnt refer to lapel ornaments, "staples" couldnt rcfer to 44. Banish jargon, hackneyed express¡ons,
standard foodstuffs, "nâils" couldnt refer to Êngernails, and and needless Lat¡n.
"spiked' couldnt refer to hairstyles.
By" jargon'we mean the words and phrases used almost
exclusively by lawyers in place of plain.English words and
43. Make it interesting.
phrases that express the same thought. Jargon adds noth-
To say that your writing must be clear and brief is not ing but a phony air of expertise. A nexut for example, is
to say that it must be dull. Of course, you should employ nothing more or less than a link or a connection. And what
the usual devices of effective writingr simile, metaphor, is the instønt cøsel Does it have anything to do with instant
understatement, analogy, and coffeel Alas, to tell the truth, it's no differcnt from this case
"[]n everything monotony is antithesis. But you shouldnt use or even here,Writenormal English. Sucb asa demonstrative
the motherof boredom.'
these or other devices ofstyle for adjective (sucb øction) can almost always be replaced with
-ûcero their own sake' They are helPful the good old normal English this or that. Andbereinbeþre
only if they cause the serious legal points you're making to wirh eørlier. And pursuønt to wkh under, The key is to avoid
be more vivid, more lively, and hence more memorable. words that would cause people to look at you funny if you
Three simple wâys to add interest to your writing are to used them at aparty. Pretend that you're telling your story
enliven your word choices, to mix uP your sentence struc- to some friends in your living room; that's how you should
tures, and to vary youn sentence lengths. With words, ask tell it to the court.
yourselfwhether there's a more colorful way to Put it. With Give the rcader credit for having abnin-and show
sentences, guard against falling into a monotonous subject- that you have one, too. Dont leave your common sense at
verb-object rut-especially when it's the same subject, the door.If your brief repeatedly refers to the Secrerary
sentence after sentence. And remember that an occasional of Transportation and mentions no other Secretary, it is
arrestingly short sentence cen deliver real punch ("This wolf silly to specify parenthetically, the ñrst time you mention
comes as a wolf"). the Secretary of Transportation, "(hereinafter the Secre-
rary)i No one will think that your later rcferences to'the
Secretary" denote the Secretary of Defense, or perhaps four
own secretary,
Hackneyed expressions are verbal formulations that were
wonderfully vívidwhen Êrst used, but whose vividness,

TLz LL3
 Briefng
Merrxc Youn Cese: Tnp Anr or PsRsueuNcJuocns

rhrough overuse, no longer pleases bur bores. Such-an&such edition, the relevant passege was dramatically changed: "You
a case'ãnd its progeny" is a good example. Or the asserrion
might well have heard that contractions dont belong in legal
that an argument is "fatally flawed" or'flies in the face of" writing The view seems to be that they areít professional.
something; that your adversary But that's just a shibboleth.Infact., the decision whether
"The readability of Holmes
is'þainting with a broad brush"; to use a contraction often boils down to thisr do I want to
and Cardozo is due in part to
that a claim isn't'îiable"; that sound natural, or do I want to sound stuffyl"3s
thek mastery ofthe native
tongue and subjugation ofthe
the'þarameters" of a rule arcrit What accounted for the abouçfacel Mostly the influence
acquired language of the law"
settled; or that something is true ofJohn R. Trimble, author of a classic book on writing,3e
Wiley B. Rutledge
-Hon. "beyond peradventure of doubt." who urged a change of position on grounds that contrac.
The test is: have you seen the vivid phrase a lotl If so, odds tions heþ you achieve a more conversational rhythm in your
are it's a cliché. writing. He's not the only respected expert advocating con.
Some Latin expressions are convenient shorthand for tractions.4o Unsurprisingly, empirical studies have shown
rules or principles that have no English shorthand equiva- that frequent contractions enhance readability.al And then,
lent (res ipsaloquitur, for example, or inclusio unius est exclusio of course, there are the respected legal writers who've used
øltdrius), But avoid using other Latin phrases, such as ceteris contractions as a way of making their writing more read-
paribus, inter øliø, mutatis mutøndis, andpmipøssø.Judges are able, such as Clarence Darrow, GrifÊn B. Bell, Richard A.

permitted to show offin this fashion, but lawyers musr nor. Posner, Frank Easterbrook, and Alex Kozinski. And con-

And thejudge who does not happen to know the obscure sider rhat every President since President Ford in 1975has
Latin phrase you have flaunted will think you a twit. J8 Garner, The Elements of Legøl Style 8I (2d ed. 2000).
39 John R, Trimble, Writing with Style: Conversations on the Art oJ Writíng (2d ed'
45. Consider us¡ng contract¡ons occas¡onally-or not. 20oo).
40 See William Zinsser, On WritingWellT5 (6rh ed. 1998) ("Your style will be
The Garner uiew: In a book I wrote in 1991, this advice warmer and truer to your own personality ifyou use contractions like øort and
appeared: "Contractions are usually out of place in legal cdn'twhen they Êt comfortably into what you're writing,"); David W. Ewing,
WritingJor Results ín Business, Government, and tbeProfessions 358 (1974) ("Such
writing. Instead of can't, prefer cønnot; instead of won't, will common contractions as ifi, cbat's, tbey're, and sbe'll arc corcect in almost all writ-
not; and so forth. . . . Common contractions such asbøsn't ten communications in business and the professions,"); Rudolf Flesch, Tbe ^Art
oJReodableWríting82 (19a9) ("[t]he most conspicuous and handiest device of
and didn't may be perfectly appropriate in correspondence,
[writing readably] is to use contractions.") '
but not in court papersi'r7 Eleven yearslateg in the second 41 Wayne A, Danielson & Dominic L. Lasorsa, .¿t Neu, Re¿ dabilitl Formula Based on
the Srylistic Age oJNotels, ))J. Reading 194, 196 (1989).
37 Garne¡ The Elements of Legal Style 8I (1991) .

r74 [5
 Merrxc Youn Cese: TlrB Anr or PeRsuenrNcJuocns Briejng

used contractions in the State of the Union Address. Did will distract or subliminally repel readers. It's an empirical
these contractions diminish the perceived "dignity" of the issue that will no doubt be tested in years to come.)
addresses I Seemingly not.
The Scaliø viewr Clarcnce Darrow and GrifÊn Bell may
Contractions ought to become more widespread in legal
well have made their "legal writings" more readable by occ*
writing. That includes briefs and¡udicial opinions. But they
sional use of contractions, But I doubt that the legal writ'
shouldnt appear at every single turn-only when, in speak-
ings thus vulgarized(look the word up before you consider
ing, one would most naturally use a contraction.
it too strong) included their briefs filed in court. As for
As for the idea that contractions may arouse negativity
Judges Posnet Easterbrook, and Kozinski, life tenure is a
in the judicial mind, it doesn't square with experience. If
wonderful thing; neither they nor any client of theirs pays
contractions are distractingly beneath the judicial reader's
a price for their contractions. (Kozinski, for Pete's sake,
dignity, then what kind of reaction occurs when judges'
has been known to write an opinion with 200 movie titles
eyes are accostedwith contractions on virtually every page
embedded within it.) And the State of the Union Address is
of the New Yorker, Time, Newsweek, andtheEconomisf i In
not writing but (hello!) an address. The rules for oral com-
some sentences, are not contractions all but obligatoryi Do
munication are different. A proper test would be whether
you nor thinki
Presidents use contractions in their signing statements, veto
(Aside: In his ensuing discussion of contractions,Jus- messages, and executive orders. (They do not.)
tice Scalia disparages my insistence that we make this text
The issue before us here, however, in this advice-giving
gender-neutral. He yielded on the point in part, I think,
treatise on legal argumentation, is quite simply whether
because my usage books recommend this strategy in
contractions are (L) lnore or (2) les likely to advance your
extended entries entitled "Sexism," and I m grateful that
cause. I have no doubt that (2) is the answer. All of us
he did so. In my view, that's an instance of adopting a con-
employ different styles of speech, and of writing, for dif'
vention to avoid distracting readers. So I advocate "invisible
ferentoccasions. Some words perfectly ProPer in some cir-
gender-neuffality,"oz In a way it's similar to the debate on
cumstances arc janing\y inapt in others. That is why good
contractions: I think the uncontracted words will distract
dictionaries have the designation "colloq." Written forensic
or subliminally repelreaders, and he thinks the contraction
presentations have always been thought demanding of more
formal expression, just as oral forensic presentations are
demanding (see $ 73) of more formal attire,
42 S ee G t ner, " Bias-Free Language," in T h e Cb icøgo Manuøl of Stl e $ 5,204, tt 21j
(15th ed, 2003).

116 TI7
 Briefng
Merrr.¡c Youn Cas¡: Tns ART op P¡RsueorxcJuocrs
ings that use contractions also confront clumsy patches that
Formality bespeaks dignity. I guarantee that if you use
must be written around-unless my coauthor employs the
contractions in your written submissions, some judges-
unacceptable"ain't" or suddenly inserts among his folksy
including many who are not offended by the use of con-
contractions the very formal'ãm I not."
tractions in the New Yorker, Tirne, Vogue, the Rolling Stone,
Field ønd Streøm, and other publications not addressed to
Which suggests another comment that is almost a point
blacþrobedjudges engagedin the exercise of their augusr of personal privilege: I find it incomprehensible that my
esteemed coauthor, who has displayed the inventiveness
governmental powers-will take it as an affront to the dig-
nity of the court. ("Why next, to ensure e more tonversa- of a DaVinci and the imagination of a Tolkien in devising
tional'environment, this cheeky fellow will have us shed our circumlocutions that have purged from my contributions
robes, and start calling us by our first names!") And those
to this volume (at some stylistic cost) all use of "he" es the
judges who dont take offense will not understand your traditional, generic, unisex reference to a human being-
brief, or vote for four case, one whit more readily. There is, incomprehensible, I say, that this same coauthor should
speak disparagingly of "shibboleths," and feign inability to
in short, something to be lost, and nothing whatever to be
come up with an acceptable subsdtute for the clumsy "Do
gained. LJnless, of course, you and your client share with
my esteemed coauthor theJacobin passion to bring written you not thinki" (Try "Is that not sol" or "Would you not
agree?")
discourse in the forum down to the level ofspoken discourse
(Response to aside: Invisible, my eye,I'll bet you can spot
in the marketplace.
As for the telling example "Do you not thinki": that the places where force or simplicity has been sacrificed to
second-best circumlocution. As for distraction: To those of
sounds klwzy for two reasons. First, because it is collo-
us who believe that"he" meens, and has always meant, "he
quial in dropping the last word, "so," and the combination
ofinformalfty andformality is absurd. And second, because or she" when not referring to a male antecedent, the ritual
shunning of it to avoid giving offense to gender-neutralizers
it is almost impossible to conjure up an example of formal
writing that asks the reader a direct question; the very act is. .. well, distracting)
of asking is inberently informaf so couching the question in
formal terms seems absurd. (Yes, formal writings some-
times contain rhetorical questions that answer themselves;
they are not seeking the readerî opinion, but are addressed,
so to speak, to the Spirit of Reason.) Moreover, surely writ

119
118
 M¡,rruc Youn Case: Tr¡s ART op PsnsuaorNcJuoces Briejng

46. Avoid acronyms. Use the parties'names. Union was required to consult with the Association before
taking that action.'43
Acronyms arc mainly for the convenience of the writer
Refer to the parties by their names rather than their sta-
or speaker. Dont burden your reader or listener with many
of them, especially unfamiliar ones. FBI and IRS are OK,
tus in the litigation (plaintiff respondent, etc.). There are
but not CPSC and FHLBB. You good reasons for this. Sometimes, in reading brieß, judges
"One day we may all be buried
may be surprised how easy it is to
will get confused about who is on the up-side and who on
under an avalanche ofaclonyms.'
avoid a brief of alphabet soup- the down-side-and will have to flip back to the cover to
Algeo
-John see who "Petitioner" is. Moreover, the petitioner here may
and from the reader's point of
have been the defendantattrial,and the respondent on the
view (which is the only point of view that counts) it is worth
Êrst appeal. This can make the record on appeal confusing
the effort.If the Consumer Product Safety Commission
plays a prominent role in your case, and no other agency has
if status-names are used in the brieñng and argument at
each level, EverettJones, however, is always and everywhere,
any pert at alI, callit"the Commission," or even simply'the
at all stages of the litigation, Jones.
agency." If the case concerns the Prosecutorial Remedies
Some mistakenly advise that you should try to personal-
and Other Tools to end the Exploitation of Children Today
ize y our client and depersonali ze the opposing pa rcy by calL
Act. of 2003 (117 Stat. 650), foil the drafters by refusing to
call it'the PROTECT Act'i just'the Acr" will do. ing the former'Jones" and the Iatter "Defendânt." This is
much too cute; rather than depersonalizing the defendant,
The reason for avoiding acronyms is well exempliÊed in
a Êctional passage devised byJudge Daniel Friedman¡
it will annoy the court and ruin the story.
Sometimes each side ofthe case has multiple Parties, so it
[I] t is not unusual to read a sentence such as this in a briefi
"The Port Association of Freight Forwerders (PAFF) is impossible to use a single name. No problem. If they are
entered into an Agreement Covering Loading Practices in all railroads , rcfer to them as 'the railroads"; or if all debtors,
the Inner Harbor (ACLPIH) with the Seattle Chapter of call them "the debtors." If they are a mishmash, pick the
the Union of Warehousemen and Stevedores (SCUWS)." neme of one of them and deÊne that to include the entire
Tivo pages later, the following appeârsr "Under the ACLPIH,
SCUWS was required to consult with PAFF before taking
group. For example, "The petitioners (collectivelp 'Exxon )
that action," This problem could be avoided if, instead of claimed below that . . . ."
using these initials, the writer employed shorthand terms,
such as'Association," "Agreement," end "Union." In place
of the gibberish just guoted, the sentence would be fully 43 Hon, Daniel M' Friedman, "Winning on Appeel," in AppelløteProctice Monual
comprehensible and succinct¡ "Under the Agreement, the 129,I34 (Priscilla Anne Schwab ed., 1992)'

t20 L21
 MarINc Youn Cess: Tsp Anr op PsRsueorncJuocns Briefng

Here, as everywh ere, clarity governs all. It sometimes 48. Describe and cite authorities
makes sense to use terms like'þneral contractor," "owneÍ," with scrupulous accuracy.
and "subcontractot" if that will identify the cast of chatac-
Persuasive briefrng induces the court to draw favorable
ters in aw;ry that makes the story more comPrehensible.
conclusions from accurate descriptions of your authorities.
47. Don't overuse italics; don't use bold type except Itnever distorts cases to Êt the facts. The impression you
in headings; dont use underlining at all. want to make on the court-that you're knowledgeable and
even expert-will be compromised by any misdescription
ka\icizeto emphasize,but do it sparingly. Remember that opþosing counsel brings to the court's attention. If a
that when too much is emphasized, nothing is. Constant case is only close but not completely in point, say so. Then
italicizínggives your brief the tone of an adolescent diary, explain why the difference is insubstantial and should not
which is not what you should be striving for. tffect the outcome.
Whenever possible, replace your italics with the device Make faithful and accurate use of the conventional intro-
that provides the usual means of emphasis in written ductory signals, as set forth inTbeBluebookoo or the ALWD
English: word order. In phrasing sentences ' try to Put the Citation Mønualas-one of which should always be on your
ponch word at the end. Instead of writing "she held akntfe desk. If enother style manual is required in your state
itt h"t hand," write "'What she held in her hand was a knife." courts, use it. When you cite a case with no introductory
The latter formulation gives equivalent prominence to the signal, you're afÊrming to the court that this case explicitly
desired word but sounds less excited. But when the only
hilds whxyou havejust said. If it is an alternative holding,
means of making your thought clear is to italicize a word
say so with the parenthetic al"(alternative holding)." If the
or phrase, do it.
proposition you have propounded is not stated in the case
Some brieÊwriters ill-advisedly use boldfa ce tYPewithin
t.r. r,"."rr"rily follows from its holding, introduce the case
normal text. The result is visually repulsive. Reserve bold- by See. When the case you cite is merely analogous authority
face for headings.
for the proposition you have stated, introduce it with the
As for underlining, it's a crude throwback: that's what signal Cf Show a contrary holding with Contrø, and a case
writers used in typewriting-when italics werent possible.
Nobody using a comPuter in the 21st century should be
underlining text. To the extent thet The Blueboob suggests 44 T h e Bluebo ok : A U n tt'or m 51 stem of Cita tíon $ L.2, at 46 - 48 ( 18th ed' 2005)'

Citøtion Manual: AProfessionalslstem oJCítation$ 44'1, at124-25 Qded'

otherwise, it should be revised. 45 ALWD
2006).

r22 r23
 Mexnsc Youn Cess¡ Tne Anr op PnRsu¿,orNcJuoces Briefng

from whose reasoning a contrary holding necessarily follows citation of $ 1132(a)(3). Worse, sometimes a briefthat does
withButsee. And so forth. Consult your citation guide. this then adds an appendix using only the Code sections,
When even one of your citations fails to live up ro four Leavingit to the rcader to figure out which one is S 502.
introductory signal, or is nor parenthetically quali6ed when Once an act has been codiÊ ed, rcfet to the Code sections;
necessary, all the rest of your citations inevitably become to do otherwise is to frustrate the whole purpose ofcodiñca-
suspect. Remember the evidentiary maxim, which pretty tion. Thejudges may not be as familiar with the original
well describes the way people (includingjudges) generally act as yov are, and they are accustomed to working from
react to intentional or even careless distortion:..¡[øIsus in uno, the Code. Make their job easier by using Code references
følsus in omnibus, False in one respecr, false in all.
consistently.
And put your citations in the form most convenienr for Professionalism is laryely amatter ofthwarting Murphy's
the generalist judge. In rcfeningro â governing text, cite Law: if something can go wrong, it will. Anyone who has
the ofÊcial code. Some brieß cire secrions of the original ever written a book or article knows that errors can creep in
enactment as conrained in session laws (in the federal sys- with alarming ease. So you crearte safeguards that prevent
tem, "Stat." cites) rather than the sections as codiÊed (e.g., things from going aw ry.Yeúfy your guotations and citations
the United States Code). For example, a brief may rcfer rc âs you enter them into a draft. Ensure that someone other
"section 502(a)(3) of ERISA' to identify a provision of the than the researcher veri6es them a second time. Ensure that
Employee Rerirement fncome Security Act of I974,Pub, others read the brief-not just those who collaborated in
L. No. 93-406, Tit. I, 88 Stat. 829, eventhough that provi- producing it. You yourself proofread it two more times
sion is now codi6ed at 29 U.S.C. $ 1132(a)(3). It's easy to than you think necessary. And KeyCite or Shepardizethe
understand why this pracrice arises, since before codi6ca- citations once again before frling the brief-perhaps while
tion the only soarce for citation is the session law; all the creating the Table of Authorities.
earlylaw+eview articles and commentaries refer to "section
of the Acr," and pracririoners specializing in that 6eld 49. Cite authorities spar¡ngly.
-become accustomed to using that form of reference. But You're not writing a treatise, alaw-review ardcle, or a
once codiÊcation has occurred, this practice can do nothing comprehensive Corpus Juris annotation. You are tryingto
but confuse. Since proper citation form requires rhe Code persuade one court in onejurisdiction. And what youretry'
section, we end up with abrief that refers to $ 502(a)(3), ing to persuade it of is not your (or your junior associate's)
followed (at least the Êrst time that designation is used) by a skill and ænacity aúegalresearch. You will win no points,

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MerrNc Youn Case: Tn¡ Anr op PeRsuaorNcJuoces Briefng

therefore, for digging out and including in your brief every

by a&ut see citation of the few courts that are opposed. And
relevant case. On the conrrary, theglut of authority will
citing an ALR annotation on point will be helpful.
only be distracting What counrs is not how many aurhori-
Secondary authorities (treatises, Iaw'review articles, case
ties you cite, but how well you use them.
annotations) help conÊrm your anaLysis of trends in the
As for governing authority, if
Law, general background (supporting, for example, your
"[T]he fact is that in his briel the the point you are making is rel-
lawyer seems oppressed with the stetement that before the statute at issue was adopted,
event to your reasoning but is
feeling that his reasoning must be the law was thus-and-so), and your view about what is the
the servant ofhis authoritiet w¡th neither controversial nor likely "best" rule with the most desirable policy consequences.
the resultthat his argument often
to be controverted, a single cita-
becomes heavyfrom forced sub- It's superfluous-and hence harmful-to cite a secondary
ordination, when it might be light- tion (the more recent the better)
ened by using the cases merely to
authority for a proposition clearly established by governing
will sufñce. Anything more isjust
illu$rate, like pictures in a book." authority.
showing off to an unappreciative
-Howard
C. Westwood
Dont expect the court, or even the law clerks, to read
audience. But if the point is cen-
your secondary autho rity; they will at most check to see
tral to four case and likely ro be conresred, nor only cite the
that it supports the point you make. They will therefore be
case but concisely describe its facts and its holding. And fol-
persuaded not by the reøsoningof your secondary authority
low that description by citing other governing cases (Accord
but only by rhefactthat its author agrees with you. And the
Smitb Jones, Roe v. Doe),
v.
force of the persuasion will vary dftectly with the promi-
Ifthere is no governing authority in poinq your resort ro
nence of the author. Thus, excePt âs a convenient way to
persuasive authority may require more extensive citation to
refer the court to a comPendium of cases, it's not much
show that the rule fou are urging has been accepted in other
help to bring to the court's attention thefact that a student
jurisdictions. (For example: "Every otherjurisdiction rhat
law-review note is on your side. Use it only when you have
has confronted this question has reached the same conclu-
nothing else.
sion. See Smith v.Jones,972P.2d1294 (CaL.1998); Roe v.Doe,
649 N.E.2d 1391 (N.Y
1995);Riley v. Silbermøn,593 S.E.Zd 50. Quote authorities more sparingly still.
930 (Va. 2003):) Ifpersuasive authority is overwhelmingþ
in your favor but not uniformly so, you may have ro resorr We've said that it pays to quote directly from a case
to a footnote showing all the courrs in your favoç followed setting forth your major premise. But it doesnt Pay to
string along quotation after quotation for the rest of the
paragraph. A remarkablylarge number of lawyers seem

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MerI¡.rc Your Cese: Tl¡s Anr or PensulotNc JuocEs
tissue between them-words to take the reader smoothly
to believe that their briefs are improved if each thought is
from one quotation to the next. Baclcto-back quotations
expressed in the words of a governing case. The contrary is
with no connectives are verboten.
true. After you have established your major premise, it will
be your reasoning that interests the court, and this is almost 51. Swear off substantive footnotes-or not.
always more clearly and forcefully
"Quotations from cases are effec- exPressed in your own words than The Garner uiew:Put no subssntive point in a footnote-
tive only ifused sparinglY. Quot-
in the stringing together ofquota- none, at least, that you consider important to your argu-
ing at length from opinion after
opinion is a lazy way of writing dons from various cases. Such a ment. There are several reasons for this, but the best is that
a briel and the finished Prod-
cueand-Paste aPProach also Pro- many judges dont read footnotes. Some courts have even
uct is likely to be unconvincing.
Long before the briefapproaches duces an air ofartiÊciality, even of announced that they won't consider any argtrment raised
lack of selÊassurance. You want
its end, the leader has begun exclusively in a footnote,a6 Ah, yes, you are accustomed to
to skip overthe quotations."
the court to develop conÊdence seeing lengthy footnotes in judicial opinions and in law-
Daniel M. triedman
-Hon. review articles. But the authors ofjudicial opinions don't
in your reasoning-not in Your
ability to gopher uP suPPorting quotations. Say what you 46 E G a s C ot p. t. F ERC, 481 F.l d 7 9 4' 7 99-800 (D.C' Cir. 2007)
g., NST,{R Elec. €¡
know to be the law, and suPPort it by citing a case that holds (" [T]his argument is found in a single footnote in NSTAR's opening brief, and
such a reference is not enough to raise an issue for our review."); S mithkline Bee-
precisely thât.
cbam Corp. v. Apotex Corp., 479 F.id liL2, 1320 (Fed. Cir. 2006) ("[A]rguments
Be especially loath to use alengthy, indented quotation' raised in footnotes ere not preserved.")t Lutwin v. Thompson,36l F 3d 146' 148
It invites skipping. In fact, many block quotes have probably n,1 (2d Cir. 2004) ("We decline to consider this argument because'[a] conten-
tion is not sufÊciently presented for appeal ifit is conclusorily asserted only in a
never been read by anyone. So never let your point be made footnote."' Iquoting Tolbert v.þeens College,242F'3d58,75 (2d Cir.200l)]); U,S.
only in the indented quotation. State the point, and then v. Dairl Førmers of Am, lnc., 426 F3d850,856 (6th Cir.2005) ('An argument

support it with the quotation ('As ChiefJustice Marshall contained only in a footnote does not preserve an issue for our review."); Sledd
v. Líndsry,102 F.3d 282,288 (7th Cir. 1996); Equípnent Mfrs. Inst. v. Janklow,
it: . . ."). This is, to be sure, iteration (yet another 300 F.Jã842,848 n.2 (8th Cir.2002) (" [T]his Court will not consider a claim
"*þt".t"d
reason to avoid block quotes). But iteration that simultane- improperly presented in e footnote,");Bakalß u. Golembeslni,35F.ldilï,J26 n.8
(7th Cft,1994) (An argument "made only in a footnote in the opening brief'
ously buttresses with authority is sometimes effective.
and'hot fully developed until the reply brief . . . is deemed waived"');People u.
If you can't weave guotetions deftly into the fabric of Crosswbite, I24 Cal. Rptr, 2d )0L, 306 n.5 (Ct. App. 2001) ("This argument is
your prose-especially the block quotations-abjure them waived by raising it only in a footnote under an argument heading which gives
no notice ofthe contention."); Roberts v.WorcesterRedeu' Auth.,759 N'E'2d 1220,
altogether and paraphrase instead. Ifyou ever use a series
1227 n,lI (Mass. App, Ct. 2001) ("We are not required to address an argument
of quotations, remember that you must supply connective raised in a footnote.").

129
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 M¡rlxc Youn Cess: THn Anr or PeRsueorNcJuocrs Briefng

win or lose by keeping their audience's attention. And law- argument, and another for theJustice assigned to write the
review writers are generally most interested in demonstrat- opinion. The straightforward, punchy argumenr appeared in
ing their scholarship. W'hatever the value of substantive the text of the brief. The exra details were in the footnotes.
The of6ce also used footnotes to anticipate the other side's
footnotes in those conrexrs-and many think they ought
weaker erguments and to address arguments that the other
to be seriously curbed there as well-they have no place in a side never made-but that theJustices or their clerks might
briefi If the point is not importânt enough to be in the text, think up.
it's not important enough to be in the briefl It is bad to weste space in rhe text ofa briefaddressing
arguments never made, but it is worse fo know that a bright
You may recoil from the blackletter admonition here. But
person might come up with an ârgument, have a ready
ayear or two after deciding that you ll never put a sentence answer, omit it from the brie6 and then Ênd from the opinion
in a footnote (reference notes conteining only bibliographi- that the judge has thought up the argument but not tbe ønswer,
cal material are okay), you ll probably be surprised at how Putting such information in footnotes makes it possible to
Êle a cogent and sreemlined brief the sort of thing that will
easy that resolution is to keep.
persuade on Êrst reading, while keeping potentially helpful
A Scølia quølijcøtion: In my view, the preceding advice is elaboration available for thejudge to consult later.
too categorical. The Solicitor General of the United Sares, I know of no court that will carcgorically not consider
after all, is a highly skilled and experienced advocate, and substantive footnotes. The citations contained in my coau-
the brieß of that of6ce almost always conrain substantive thor's scary footnote pertain to the raising of fundamentally
footnotes. new claims or new arguments-for example, makinga Due
It is assuredly true that nothingreally important to the Process Clause argument in a footnote when all the rest of
decision should be in a footnote. And it's even true that, in the brief relies on the Sixth Amendment. That shouldnt
most courts before which fou ere likely to appeab nothing of be done But providing useful (though less than
substance should be in a footnote. But in those courts with ^îyway,
essential) support for an argument made in text is quite
a relatively limited docket, accustomed to issuing detailed different. And more differentstill is a footnoted response to
and exhaustive opinions, some relatively unimportanr mar- a weak argument made by the other side. These footnotes
ters are worth discussing below the rext. As ChiefJudge may not be read; but if read they will be considered.
Frank Easterbrook ofthe Seventh Circuit, himself a former
Deputy Solicitor General, has told us in a lettert
The SG's style, at least when I was there, was to wrire
two briefs: one for all theJustices as they prepared for oral

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Briefng
Mexrxc Youn Cese: Tns Anr o¡ PensueorNcJuoces

52. Consider putt¡ng c¡tat¡ons in footnotes-or not. the practices of the mosr accomplished nonÊction wrirers
of our day. Although this technique improves the prose,
TbeGøner view:I'vemade it somethingofa cause célèbre it concededly makes greater demands on the writer, who
to reform the way citations are interlarded in lawyers' must maintain a tighter train of thought. Readers need no
texts.47 Since 1992,I've recommended putting all biblio- longer skip over long swaths of bibliographic characters in
graphic material (volume numbers and page numbers) in the middle of the page (e holdover of typewriting style).
footnotes but avoiding putting any substantive rexr (com- Meanwhile, those readers who are crrtically evaluating your
plete sentences) there. Nothing should appear in a footnote cited authorities-your adversaries andjudges-can still
that anyone should have to read-only what someone might see what you've cited.
consult for looking up a reference.a8 Under this system of Whether this system will gain widespread acceptance
subordinating citations, readers should never be asked to within the profession remains to be seen. Manyjudges and
look down at footnotes-there's nothing signiÊcant there lawyers have adopted ít,ae and their numbers are increas-
because the important authorities have been named and dis- ing. We should measure progress in decades. It is with no
cussed in the text ("Threeyears ago in Flom v.Bøumgartner, small degree of sadness that I note my inability to persuade
this Court held that . . ."). my coauthor to use this method for the improvement of
Using this system, while describing in rhe rext the major judicial writing generalLy, One of his favorite sayings is that
authorities you're relyíngon, has several advantagesr (1) "whatever doesnt help hurts," and itt inconceivable that
visually, the important material on the page, thediscussion 535 U. S. 27 4, 27 6, 722 S.Ct. 1474, 1416, L52 L.Ed.zd 437,
of authorities through close reasoning, is most prominent 439 helps anyone whob tryingro get. through aparagraph.
instead of the least important informarion, namely, the Meanwhile, his worries about'trabbyjudges" have rarcIy if
volume and page numbers; (2) disjointed thoughts, which ever been borne out among the many hundreds of lawyers
are rampant in briefs, are immediately exposed for what who years ago adopted my recommendation and continue to
they arc; (3) poor paragraphing gets exposed; (4) discus- follow it. Quite the opposite: they report that they routinely
sion of governing and persuasive authorities is enhanced meet with positive outcomes-in part because they write
because it can no longer be buried in parentheticals fol- more compellingly as a result of this technique.
lowing citations; and (5) the prose more closely follows
The Scøliø uiew: AIas,I disapprove this novel suggestion.
47 See William Glaberson, Legal Citations on Trial in Innovation v. Tradítion, N i(, You cannot make your product more readable to the careflul
Times, SJuly 2001, at 1, 16.
49 For cited examples, see Garn er, Legal Wr itin g ín Plaín En glßb (2001),
48 S ee G ar n e r on Langu age øn d Wr ít íng 436 - 55, 460 -7 I (2008).

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 MexrNc Youn Cess: Tnn Anr op PnRsu¡,orucJuocEs Briefng

lawyer by putting the entire citation material (case name, â sure thing that some crabby judges will dislike this one.
court, date, volume, and page) in a footnote-because the You should no more try to convert the court to citarion-free
careful lawyer wants to know, while reading along, what text at your client's expense than you should fty ß converr
the authority is for what you sa¡ So, far from enabling the it to colorful ties or casual-Frid ay attfte at oral argumenr.
reader's eyes to run smoothly across atext uninterrupted Now if Garner wanted to make a really useful suggestion,
by this ugly material, you would force the eyes to bounce he might suggest avoiding, wherever possible, rhe insertion
rcpeatedly from text to footnote. of lengthy citations in the middle of a sentence. That is easy
My coauthor's solution to this problem is to "weave" the to achieve, and certain not to offend.
name of the court and the case name (and the date?) into
the text ('As the Supreme Court of the United States said 53. Make the relevant text
in the 1959 case of Schwarz v. Schwarz,r. . ."). I doubt that readily available to the court.
this can be done (without sounding silly) for all the cita-
A text worth discussing is a text worth reading. Make
tions that a brief contains. But if it can, it will surely place
sure that the entirety of the text you are relyingon (or that
undue emphasis upon, and inflate the text with, details
your adversary is mistakenly relyíngon) appears some-
inessential to the reasoning. I will rarely want the court,
where in your brief, This is an exception to our caution
name, and date of a case thrust in my face, so to speak, by
against block quotations. If the statutory or other material
inclusion in the narrative text es though it's really impor-
is lengthy, put it in an appendix to the brief, (Placing some
tant. Ordinarily, such information can befter be conveyed,
or most of it in aJoint Appendix is not enough; judges are
almost subliminally, in arunning citation. Lawyers are used
distracted and annoyedby having to flip back and forth
to skipping over these signals quickly and moving on to the
between volumes for material that is central to the case.)
next sentence. If in this respect legal-writing style differs
By the entirety of the text we mean not only the dispositive
from other writing style, it is only because lawyers must
provision but also other portions that you claim bear on
evaluate statements not on the basis of whether they make
inter pr et ation of the dispo sitive provision.'Whatever text
sense but on the basis of whether some governing authority
forms part ofyour argument should be not merely cited but
said so.
reproduced in your brief.
Of course, whatever the merits of this debate, the conclu-
And reproduce the text of the statute, ordinance, or
sive reason not to accept Garnerî novel suggestion is that
regulation as it existed at the relevant time. If it has been
it is novel. Judges are uncomfortable with change, and it is
amended since, that should be indicated in a citation. Some-

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 MexrNc Youn Cass: THs Anr or PrRsu¡,ptNcJuocrs

times eadier or later versions of the text are relevant to its

interpretation. When that is so, reproduce the other ver-
sions-with the differences shown in italics or redlining.

54. Don't spoil your product w¡th poor typography.

When business consultants make a presentâtion to a
prospective client, they come forward with a professionally
produced, bound proposal. They understand that to get
business they must persuade, and Oral
that good visuals help. The same
"l have seen firms spend hun-
dreds ofthousands ofdollars on
technology only to make their
is true for persuadingjudges. A Argument
briefs and other documents look brief that is in an ugly typeface,
like they were typed on a 1940 with crowded lines, will not invite
Underwood. Never use Courier."
P. Painter
careful perusal. In the days when
-Ma* briefs had to be printed, counsel
(and the court) could rely on a knowledgeable printer to
produce a readily legible product. Now that lawyers can
produce their own briefs using desktop-publishing sofe
ware, the Êled product is often disastrous.
The Supreme Court of the United States has set forth
printing reguirements in its ruIe 33.If the court in which
you're Êling has no such requirements, or signi6cantly less
rigorous ones, you should consider using the Supreme
Court rules as a model. Better still, the United States Court
ofAppeals for the Seventh Circuit has posted on its website
detailed, sage guidance for proper printing.
If necessary, hire someone to do thejob right.

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