by Ross Guberman
338 pp.; $19.95
Oxford University Press, 2011
198 Madison Ave., New York, NY 10016
(800) 451-7556; www.oup.com/us
Reviewed by Charles C. Tucker
Charles C. Tucker is a founding member of Korb Tucker PLLC in Fort Collins, where he represents clients in business, employment, real property, and estate planning matters. He also is The Colorado Lawyer’s Modern Legal Writing columnist—(970) 266-5156, firstname.lastname@example.org. This review was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 79). Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.
The legal writer has no shortage of sources to which to turn for advice. The best resources are those that writers can readily put to use. In How to Write a Sentence: And How to Read One,1 law professor Stanley Fish imparts his love of the craft of language with splendid examples from many literary sources. Bryan A. Garner, in The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts,2 uses before-and-after examples to help legal writers cut out the clutter. Judge Aldisert employs a different nuts-and-bolts approach in Winning on Appeal: Better Briefs and Oral Argument,3 and includes many short paragraphs of advice by other federal and state court jurists.
For examples of top-flight writing from actual briefs, though, consult Point Made: How to Write Like the Nation’s Top Advocates, by Ross Guberman. The book bristles with sentences and paragraphs from appellate documents written by nationally known advocates, including President Barack Obama, U.S. Supreme Court Chief Justice John Roberts, and U.S. Supreme Court Justice Elena Kagan.
Guberman directly tackles brief-writing from the lawyer’s point of view. He identifies fifty techniques for achieving the most persuasive effect at every level, from organizing the brief to the choice of individual words. The techniques are pithy and useful, and therefore memorable:
#3. Why Should I Care? Give the court a reason to want to find for you.
#6. Show, Not Tell: Let choice details speak for themselves.
#21. Interception: Claim that a case your opponent cites helps you alone.
#32. Zingers: Use colorful verbs.
Each of the fifty sections is just a few pages long and includes examples and Guberman’s brisk commentary. Each example is shaded and easy to find. A busy reader can read one or two sections at a time or skip from one example to the next.
In contrast to Judge Aldisert’s systematic method, Guberman’s approach is freewheeling and anecdotal and generally directed at more experienced writers. Some experienced appellate attorneys may question whether briefs ought to have the kind of punch and bite that Guberman advocates. For example, he says that rhetorical questions can be used “to great effect” and to “put the court on the defensive”—though he also warns that they can have a “sarcastic and scathing” effect. A greater flaw, perhaps, is that the examples are not accompanied by citations or a table of cases, which hinders readers who may wish to search for the briefs Guberman praises so highly. The index is thin but does include case names and the names of the writers quoted.
Overall, Point Made is fun to read and a remarkable achievement. The examples alone are worth the book’s modest price.
- Fish, How to Write a Sentence: And How to Read One (Harper, 2011)
- Scalia and Garner, Making Your Case: The Art of Persuading Judges (Thomson/West, 2008).
- Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2d ed., National Institute for Trial Advocacy, 2003).
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