February 25, 2018

A New Approach to Writing Facts, Part I

We are told fact sections should tell a story, as if such advice is self-executing. No one explains how to tell a story. Yes, we tell stories everyday. But when we do, they come out naturally and may not be very good. Writing a fact section is not natural and needs to be good.

Put aside storytelling. Consider a different approach: filmmaking. Think of any scene from a movie you enjoy. Let’s use TOPGUN, because as someone of intelligence and great taste you were probably thinking of it anyway. Why is the main character’s call sign Maverick? Why not Renegade or Creampuff? It’s Maverick because screenwriters chose that name. Just like a costume designer chose aviator sunglasses. And not just any aviators, dark lens aviators instead of silver lens. A set designer chose which planes and how many to have in the background. The director chose to have Tom Cruise on the left and shoot the scene from a high angle. And we are all indebted to the music director for hiring Kenny Loggins to play Danger Zone.

In every scene dozens of people made decisions. Those decisions shaped the audience’s perception and told the story. Those decisions are why Darth Vader’s cape is not yellow, why the ending of the Usual Suspects surprised you, and why you knew Scar was a villain before he killed Mufasa.

In a fact section you are the cast and crew. You control every decision. It’s empowering; you don’t need a special effects budget and there is no producer to answer to. Yet most attorneys fall short because most attorneys have no training in storytelling.

Part I of this article is Directing 101 For Attorneys. It explains what stories can do in a brief and how to create them. Part II (to debut next month) applies this advice to examples.

Rethink What Fact Sections Can Do For You

“If you let me state the facts, I will let you argue the law—and I will win.”[1]

Before you write a story you need goals: (1) Identify the facts a court needs to decide in your favor, (2) provide the relevant procedural background, (3) preempt facts that favor the other side, and (4) for appeals, discuss the lower court’s ruling. Most fact sections have these goals. Most fact sections achieve these goals. And most fact sections stink.

Why they stink is less clear. When discussing fact sections, judges often advise attorneys to give them a reason to turn the page; “it is not unconstitutional to be interesting.”[2] Fair enough. But with large caseloads and billing concerns, writing entertaining briefs for an audience paid to read briefs is not a priority for most attorneys. A more compelling reason is that these four goals do not advance your argument.

A good fact section gives context and focuses on the relevant facts so “the legal analysis and result look inevitable.”[3] “From the reader’s perspective, your legal analysis seems the only possible means of reaching a just result on the basis of the facts.”[4] The four goals above do not accomplish this. You need more. Fact sections should prime a judge to favor an argument or side. They can elicit sympathy for a character or raise questions about behavior. This is where stories come in.

How to Craft A Story

If you have not been to film school, creating stories is daunting. Below is the best explanation I have come across, which comes from Stephen Armstrong’s and Timothy Terrell’s Thinking Like a Writer.[5]

The basic elements of a story are characters, the opening situation, the closing situation, and the movement from the opening to the closing.[6] “With each [element], your job is to create inferences that point towards favorable conclusions about the nature of the acts and actors that make up the story.”[7] These inferences are powerful. The power of fact sections is that “[t]hese very different stories were created from the same facts by making different decisions about which to use and how to organize them.”[8]

Like a film crew, four choices shape these elements into a story:

  1. The Start: Where does the story begin?
  2. The End: Where does the story end?
  3. Perspective: Through whose eyes do we see the events unfold?
  4. Details: Which details do we include and where do we include them? Which details do we omit?[9]

The Start

Beginnings are critical.

Sometimes stories begin by introducing a character, the world from his or her perspective, and that character’s motives for later actions. Han Solo, James Bond, Willy Wonka, George C. Scott’s General Patton, Indiana Jones, and Full Metal Jacket’s Gunnery Sergeant Hartman all have memorable introductions that prime the character’s later actions. The same principles apply to legal briefs. For example, a criminal trespass case might start with the defendant desperate, starving, and shivering, or with a family returning home to find a broken window.[10]  A trade secrets case might begin with a company introducing a revolutionary product for sale only to watch its chief scientist go to a competitor that introduces a similar product six months later. But the opposing brief might start years earlier with the competitor’s research and development team, and end with the new employee coming on board during the final stages of a product set for launch.

Other times effective stories start with context, not characters. Science fiction and fantasy movies do this all the time. There is no alien in the opening to Alien. Rather we see a giant ship with a skeleton crew floating in the void of space. The introduction establishes isolation, the last place you would want to encounter an alien with acid for blood. Lord of the Rings opens with a history of alliances and conflicts between humans, elves, and orcs; it introduces the ring but most of the main living characters come later. Bring this to your brief. Although we write about the real world, often it is a foreign world. Whether it is life in a gang-controlled neighborhood, a regulatory landscape, or how an industry works, there is a unique context. Armstrong and Terrell describe the case of a corporation accused of violating environmental regulations controlling pollutants released under certain weather conditions. Most writers would lead with what happened on the day of the violation. But a stronger opening might begin by describing how difficult it is to predict the weather.[11]

In most cases a story’s start should differ between sides. Imagine a car accident. Depending on who is being blamed, the story might begin with a description of the driver and his behavior (a character-based introduction), or a description of the intersection and weather (a context-based introduction).[12]

The End

The end of a story should reinforce the point. The criminal trespass case could end with a frightened defendant hiding in the bushes and being arrested, or with an intruder running out of a home.[13]

The end may go beyond the events that led to the lawsuit. It could lay the foundation for damages. So a trade secrets plaintiff might describe the plummeting sales or number of lost customers.  A victim’s hardships, the environmental impact, or reputational damage are all ways to end. Another option is the case’s effect on the client’s industry or the legal landscape.

Perspective

Conveying a perspective has two parts: who and how.

Who. Choose whose perspective to tell the story from. Often we choose one of the classic main characters like the plaintiff, defendant, or victim. But you don’t have to. The perspective could be from someone uninvolved with the events, like an expert witness or a detective. And it could be from someone on the other side of the case. In a case pivoting on intent, a prosecutor might tell the story from the defendant’s perspective to highlight the time he had to plan his actions; a plaintiff might do the same to show the warning signs before the negligent behavior.

Or the perspective could be from no person. You might adopt the legislature’s perspective to discuss a statute’s intent, or an agency’s perspective to describe a regulatory scheme. You could use a god’s-eye-view of the world to describe context, like a corporation’s organization or how a manufacturing process works.

Also consider whether the perspective will be consistent or whether it will change. You might begin with a god’s-eye-view of the world and then shift to a person’s perspective entering this world. Or you might start with the agency’s perspective in creating a regulatory scheme and then discuss your client’s view.

How. For most of us, to tell the client’s perspective we state the facts that client knew per that client’s testimony, deposition, sworn statement, etc. It looks likes this:

John became CEO of the company in 2001. The company entered the contract in January. The contract said all material facts were disclosed. It mentioned a $1 million debt. It did not mention a pending $3 million lawsuit. But John did not know about the lawsuit.

Stating facts your client knew does not necessarily tell the story from that client’s perspective. In fact, this example has three different perspectives.

Professor George Gopen explains that most people read a sentence as the story (i.e., perspective) of the main clause’s subject.[14] So “Jack loves Jill” is Jack’s story while “Jill is loved by Jack” is Jill’s story.[15] “Keep the grammatical subjects of your sentences the same for as long as you are telling that particular story. Then, by changing whose story the next sentence is, you will (silently) convey to your reader” a shift to a new story.[16]

So sentence structure defines perception. That is why in the above example there are three perspectives: John’s, the company’s, and the contract’s.

Avoid changing perspectives unintentionally. The compulsion to vary sentence structure (courtesy of our elementary school teachers) works against us. Rest assured, there are many ways to vary sentence structure while keeping the subject of the main clauses consistent. For example, both of these sentences are the defendant’s perspective:

The defendant chose to refuse the goods, even though the plaintiff delivered them on time.

Even though the plaintiff delivered the goods on time, the defendant chose to refuse them.[17]

Details

Identify the Necessary Facts

For a fact section you must know the law. The law identifies which facts a court must consider. For precisely this reason, many suggest writing the argument section first and the fact section last.[18] Public policies and equity may inform this decision too.

One caveat. Some hold Judge Aldisert’s view that, at least in an appellate brief, any fact you use in an argument section must be in the fact section.[19] The reason is that the fact section gives a court “an objective account of what occurred before the twist of advocacy is added to the cold facts.”[20] Perhaps in a single issue brief Judge Aldisert’s positon holds true. But modern writers have modified this approach.

“Do not burden the opening statement of facts with details relevant to a specific argument that you will develop in full later. Just state the basics.”[21] If your brief raises multiple unrelated issues, having mini-fact sections near each argument is easier for readers. Think of an appellate brief that raises pretrial, trial, and post-trial issues. The reader gets to the pretrial issue fact section on page four but does not see its corresponding argument section until page eighteen. Between those sections are pages of unrelated facts. Having a pretrial issue fact section right before its argument section makes your reader’s life much easier.

Cut Irrelevant Unnecessary Facts

A universal gripe is that fact sections contain too many facts.[22] But “too many” is the wrong phrase; it is not a numbers issue. It’s an issue with misleading a reader.

Fact sections cause problems when they suggest a fact is important when it is not. Readers assume you included a fact for a reason. The longer the reader searches for that reason the more confused the reader becomes. If a reason never comes, the reader gets confused and frustrated.

Here is a good example. At a recent CLE, one judge remarked that when she reads that police executed a search warrant at a particular address, she immediately begins to think the police searched the wrong home because why else would the address be relevant. When that is not the case, she is left wondering why the lawyer told her the address.[23] For precisely the same reason, dates, times, quotations, addresses, procedural history, locations, dollar amounts, weights, quantities, and proper names of people, places, entities, and pleadings are often irrelevant.[24]

A related problem is that fact sections fail to highlight key facts. If there are nine key facts and you tack on eighty more, those nine facts do not look essential. “Cutting clutter isn’t just about saving words. It’s also about turning down the noise so the signal shines through.”[25]

Applying these guidelines, look at Judge Posner’s edits to an opinion by Judge Wald.[26]

 

 

Judge Wald’s Opinion

 

 

Judge Posner’s Edit

 

Appellant Robert Morris was convicted of possession of cocaine with intent to sell, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii), and for using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). He appeals both convictions on the ground that the evidence was insufficient to support either charge. We reject both challenges and affirm the judgment below.[27] A jury convicted the defendant of possession of cocaine with intent to sell it, and of using or carrying a firearm during and in relation to a drug offense. The judge sentenced him to 130 months in prison.[28]
On December 11, 1990, officers of the Metropolitan Police Department executed a search warrant on a one-bedroom apartment at 2525 14th Street, N.E., in the District of Columbia. Upon entering the apartment, the officers found appellant seated on a small couch in the living room; they detained him while they searched the apartment. The search produced two ziplock bags containing a total of 15.7 grams of crack cocaine divided among 100 smaller ziplock bags, $500 in cash, empty ziplock bags, razor blades, and three loaded and operable pistols. Two of the guns were under the cushions of the couch on which appellant sat; the third was in a nightstand in the bedroom. The cocaine and the cash were in an air duct vent in the ceiling of the bedroom. In the drawer of a dresser in the bedroom, the officers found two birthday cards; appellant’s name was on the envelope of one, and the other was for a “son,” signed “Mr. and Mrs. B.G. Morris” and dated November 30, 1990. No address was on either. In a hallway closet, the officers found a laundry ticket dated December 3, 1990, and bearing the name “E. Morris.” There were no identifiable fingerprints on any of these items. The officers arrested appellant, who was indicted on two counts: possession with intent to distribute in excess of five grams of cocaine base and using or carrying a firearm in relation to the possession offense.[29] Police had a warrant to search a one-bedroom apartment. Upon entering they found the defendant sitting on a small couch in the living room. The search revealed drugs, cash, and drug paraphernalia, and also three pistols—two under the cushions of the couch and the third in a nightstand in the bedroom.[30]

 

Once you identify the necessary facts and cut all the excess facts, congratulations—you now have a timeline. But not a fact section.

Add Relevant Unnecessary Facts

Conventional advice strips a fact section to only what a court needs to rule.[31] This advice goes too far.

Think of a summary judgment motion. Think of that numbered list of materially undisputed facts. That list is not a story. If you delete the numbers and group the list into paragraphs, it is still not a story. So a fact section needs more.

Great fact sections contain helpful unnecessary facts. The difference from the previous step is that these, albeit unnecessary, facts have a purpose, a purpose that furthers the story even if it does not further the legal argument.

This concept is not new. We see it in judicial opinions. “I doubt it’s a coincidence, for example, that in the U.S. Supreme Court’s landmark death-penalty cases in the 1970s and ’80s, the justices who voted against death sentences said nary a word about the underlying crimes, while those who upheld death sentences sometimes sounded like they were writing smut fiction.”[32]

There is another role for relevant unnecessary facts.  Some facts neutralize a tangent on the reader’s mind. For example, you might explain a rare point of law, like how although the defendant acknowledged his prior convictions when he testified trial, that testimony is inadmissible at a post-trial habitual criminal sentencing hearing to prove those convictions.[33] Without this fact, a court may be left wondering why a defendant disputes the existence of prior convictions he admitted to.

Organization

“[S]ome writers assume that, if they organize facts chronologically, they are by definition telling a story. That is a damaging mistake.”[34]

Choosing which facts to include and exclude is not enough. Equally important is where the facts fit into the story.

Begin by choosing the key facts in your story. Then choose an organization that highlights those facts. For chronologies, the key fact is the sequence of events. If the case centers on who knew what when, or who did what first, chronologies work well. But be careful because chronologies deprive you of control. “Because the writer is locked into his chronological default, however, he has no choice but to insert the key [] facts wherever the chronology permits, blurring the emphasis they deserve.”[35] They also tend to “run[] out of control and drag[] irrelevant facts along.”[36]

Other kinds of key facts do not depend on sequence. Armstrong and Terrell frame these alternatives as who, what, where, and why. Who: people and descriptions of them, their motives, or their credibility. [37]  What: a thing, like documents and what they say, who they were sent to, or how they were drafted; a manufacturing process; a person’s mental state.[38] Where: a location, the conditions of an area; the weather. Why: an explanation or motive like alcohol, jealousy, greed, wet roads.[39]

These facts are best highlighted without a chronology. Just because an organization is not a chronology does not mean it is told backwards or out of order. It just means sequence and timing do not control the story. Such stories might have timeless sections that discuss context, like a corporate structure or the ecology of a marsh polluted by an oil spill.[40] They might have lengthy explanations about people, companies, or contracts before moving on to an event. Or they might explain the story out of order; they might begin at the end and then explain what led up to that event. They might switch back and forth between an event and the past (like The Godfather Part 2).

Conclusion

Fact sections are the most underused part of briefs. If you do not tell a story and if you do not tell the right story, your brief is weak. Elevate your fact section and you will elevate your brief.

Channel your inner filmmaker to craft the story that advances your argument and sets you up for success. The next time you read a brief, think about whether the fact section helps the argument. Analyze it from the director’s chair: where does the story start, where does it end, who is telling the story, which details does it include and omit, and how it is organized.


[1] George Gopen, “Controlling the Reader’s Perception of Your Client’s Story,” 38 Litigation 4, at 18 (Summer/Fall 2012), available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_5_palsgraffian_perspectives.pdf (attributing quotation to Clarence Darrow without citation).

[2] Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 168 (National Institute of Trial Advocacy 2d ed. 2003).

[3] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 111 (Practicing Law Institute 3d ed. 2009).

[4] Id.

[5] See also Brian J. Foley & Ruth Anne Robbins, “Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections,” 32 Rutgers L. Rev. 459 (2001).

[6] Armstrong & Terrell, supra n. 3. at 299. See also Aldisert, supra n. 2 at 168 (stories have characters, conflict, resolution, organization, a point of view, and a setting).

[7] Armstrong & Terrell, supra n. 3. at 299.

[8] Id. at. 299.

[9] Id. at 300.

[10] See id. at 298; 300.

[11] Id. at 300.

[12] See Armstrong & Terrell, supra n. 3 at 113-14.

[13] Id. at. 300 (“notice how the impact of the arrest differs dramatically then it comes at the end rather than the beginning. If the rest of the story has been carefully constructed, the arrest seems cruel and unjust, not a presumption to be overcome.”).

[14] George Gopen, Whose Story is This Sentence? Directing Readers’ Perceptions of Narrative, 38 Litigation 3, Spring 2012 at 17-18,

available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_4_whose_story.pdf.

[15] George Gopen, “Controlling the Reader’s Perception of Your Client’s Story,” 38 Litigation 4, at 18, (Summer/Fall 2012), available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_5_palsgraffian_perspectives.pdf.

[16] Id. at 19.

[17] Gopen, supra n. 14 at 17-18.

[18] See Armstrong & Terrell, supra n. 3 at 297 (“To write a persuasive story, you have to think carefully about the framework of plot and character around which the facts will cohere.”). See also id. at 354 (“Present facts with an eye towards the law” by stating only the facts you need, addressing material facts harmful to your argument, and avoiding argumentative characterizations of the facts).

[19] Aldisert, supra n. 2 at 169-70.

[20] Id. at 169.

[21] Armstrong & Terrell, supra n. 3 at 354.

[22] Armstrong & Terrell, supra n. 3 at 297 (“The fact section of the brief or memorandum of law becomes an agglomeration of data that is not just unpersuasive, but downright painful to read.”).

[23] Elizabeth Harris, Judge, Colorado Court of Appeals, Presentation at Appellate Practice Update 2017 (CLE in Colo., Inc. Nov. 29, 2017).

[24] Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 44-57 (Oxford University Press 2015) (applying this advice to judicial opinion writing); Ross Guberman, “Five Resolutions for Litigators,” www.legalwritingpro.com/articles/five-resolutions-litigators/.

[25] Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 51 (Oxford University Press 2015) (applying this advice to judicial opinion writing). See also Armstrong & Terrell, supra n. 3 at 301-03 (showing how too much detail prevents key facts from getting the attention they disserve).

[26] These examples come from Guberman, supra n. 25 at 45-47.

[27] United States v. Morris, 977 F.2d 617, 618 (D.C. Cir. 1992).

[28] Guberman, supra n. 25 at 45-47.

[29] Morris, 977 F.2d at 619.

[30] Guberman, supra n. 25 at 45-47.

[31] See also Guberman, supra n. 25 at 56; 77 (“if your legal analysis does not turn on one of these details, consider purging them from your fact or background statement . . . .”) (applying advice to judicial opinion writing).

[32] Id. at 60.

[33] C.R.S. § 18-1.3-803(5)(b) (2017).

[34] Armstrong & Terrell, supra n. 3 at 120. But see Aldisert, supra n. 2 at 169-70 (recommending always explaining facts chronologically). The dangers of default organizations applies to other sections of brief writing too. In fact, Armstrong and Terrell have a chapter titled “The Dangers of Default Organizations” discussing common defaults like tracking the history of your research and thinking, or tracking your opponent’s organization. Armstrong & Terrell, supra n. 3 at 87-110.

[35] Armstrong & Terrell, supra n. 3 at 113.

[36] Id. at 111. “[T]he writer usually seizes onto chronology as a drowning person onto a life preserver. But a chronology is not a story. Nor can you turn it into one by ‘spinning’ or characterizing the facts, or by adding a few more heart-wrenching details.” Id. at 297.

[37] See id.

[38] See id.

[39] See id.

[40] See Armstrong & Terrell, supra n. 3 at 111-12.

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Enhance Your Brief With Visual Aids

Have you ever tried to describe a fence in a brief? How about a photo lineup, a property line, a crime scene, a trademark, a scientific process, a patent, a timeline, a trail of money, a web of subsidiaries, or a comparison under a multi-factor test? You have options. A picture is worth a thousand words. So use a picture and lower your word count.

Rarely used yet always appreciated are visual aids like charts, maps, diagrams, and pictures.[1] Some concepts are easier to understand pictorially.

Simple visual aids are best. Remember, visual aids are substitutes for less effective main text. They should be simple and self-explanatory. If they need explaining, they are not working. For example, do not describe a scene and then include a map that matches the description. Just use the map.[2]

If you are new to visual aids, do not fear. You do not need to be an artist or computer wizard. Although you must use care when designing the aid, it need not be elaborate or artistic. As you will see below, many are basic and occasionally even hand drawn.

Finally, even if the visual aid is part of the record, include it in the brief rather than just citing to the record. Keep the brief a cohesive unit with all the information a court needs to decide a case.

Here are some opinions that use visual aids effectively. They show courts using them for three reasons: (i) to orient a reader or visualize the scene, (ii) to make a comparison, and (iii) to summarize facts. Each example includes the paragraph introducing the visual aid.

Using Visual Aids to Orient a Reader/Visualize the Scene

Example 1: [3]

Busch also concluded that the trajectory of the bullet holes caused by the initial shots to both Baldwin and Turley were consistent with a shooter being located by the barstools and that the shots could not have been made by someone coming out of the men’s restroom. First, the bullet that caused Turley’s wound was found in the tavern’s east door. Had the bullet been fired by someone by the men’s restroom or walking along the south wall (as Ogryzek testified), the bullet would have had to change its course almost 90 degrees after striking Turley to end up in the east door. The diagram below reflects the tavern’s layout and locations of Marcia Woolley, Turley, and Baldwin at the time of the shootings.

Example 2: [4]

The following diagram shows the approximate relative relationship of the properties that we have described above. This diagram is for illustrative purposes only, and it is not drawn to scale.

Example 3: [5]

The court ordered that a deed transferring a right-of-way for a road from Digor to the county be reformed and that the defendants among others be permanently restrained and enjoined from interfering with the county’s or the public’s use and possession of the property described in the reformed deed. We affirm.

On December 1, 1953, defendant Digor filed a plat signed by him in which a proposed road across his land, represented by the segments A, B, C, and D in the diagram below, was designated ‘Digor Drive.’

Example 4: [6]

This writ of error presents a rather knotty problem and arises from the fact that a house was so constructed as to encroach about 2 feet on an adjoining lot. To aid in an understanding of the entire matter, there is set forth below a diagram, not to scale, which when considered in connection with the balance of this opinion will hopefully bring the dispute into focus.

 

Using Visual Aids to Compare

Example 1: [7]

¶ 42 And even if (1) defendant’s identity as the perpetrator of the crime had been at issue; or (2) modus operandi evidence were admissible in cases other than sexual assault or domestic violence cases to prove the crime’s actus reus, we would nonetheless conclude that evidence of the February drug deal was not admissible to prove defendant’s modus operandi. When we compare the February drug deal with the May drug deal in the chart below, we see that, although the two drug deals were similar in some respects, they lacked the striking similarities and distinctive methodology that the law requires to show that both drug deals were the handiwork of one perpetrator. . . .

Example 2: [8]

Figure 2 compares the Hawg sealed bearing pack (Figure 2a) and the Newsco sealed bearing pack (Figure 2b).

. . .

Fifth, a defense expert compared the Hawg design to designs that had been publicly available at that time. One of these was illustrated by U.S. Patent Application Pub. No. 2003/0015352 fig. 1 (filed July 17, 2001), which we compare to the Hawg design in Figure 3.

Example 3: [9]

When Baig saw a billboard advertisement for Diet Sprite Zero in September 2004, he contacted Coca-Cola to threaten litigation over its purported infringement of his mark. Below are pictures of “Diet Sprite Zero” and “Naturally Zero.”

 

Summarizing Facts With Timelines, Charts, or Flow Charts[10]

Example 1: [11]

The facts of the petitioner’s brutal sexual assault and murder of 25-year-old LaTausha Curry on January 21, 1999 have been set forth in detail in our earlier opinion and the opinion of the Texas Court of Criminal Appeals. We will not repeat them here. Some of the relevant dates have been set forth above. We repeat these dates and others in the timeline set forth below:

November 19, 1999: Johnson sentenced to death.
October 22, 2001: Johnson files state petition for writ of habeas.
January 30, 2002: Tex. Court of Criminal Appeals (“TCCA”) affirms Johnson’s conviction on direct appeal.
June 20, 2002: U.S. Supreme Court issues Atkins.
October 8, 2003: TCCA denies habeas relief.
February 11, 2004: TCCA modifies the “two-forum rule,” which required dismissal of a state writ or successive writ if a federal proceeding was pending, even if that proceeding was stayed. Ex parte Soffar, 143 S.W.3d 804, 804 (Tex.Crim.App.2004).
May 17, 2004: Johnson files first federal writ.
September 18, 2007: Federal writ denied by district court.
December 2, 2007: District court denies motion for new trial.
April 7, 2008: Johnson seeks COA from Fifth Circuit.
October 2, 2008: Fifth Circuit denies COA.
January 16, 2009: Execution date set for April 30, 2009.
March 9, 2009: U.S. Supreme Court denies cert to Johnson’s challenging the Fifth Circuit’s denying his COA.
April 28, 2009: Johnson attempts to file successive writ with TCCA based on Atkins claims.
April 29, 2009: TCCA denies subsequent writ because Johnson failed to make a prima facie case of mental retardation. Johnson files the current motion.

Example 2: [12]

On cross-examination, witness Nee frequently asserted his Fifth Amendment privilege. The chart below outlines the context in which these assertions were made:

Example 3: [13]

The ownership genealogy of the ‘236 and ‘578 patents is documented in the chart below.

Example 4: [14]

JWR operates four coal mines west of Birmingham, Alabama. The parties refer to the mines as Mines 3, 4, 5, and 7. Mine 3 is located in Jefferson County, Alabama, near Adger, Alabama. Mines 4, 5, and 7 are located in Tuscaloosa County, Alabama. The number of layoffs at each mine and the percentage of workers affected are reflected in the chart below:

 

How to Create Visual Aids

Here are helpful resources on creating visual aids.

Designing charts and graphs

  • Gene Zelazny, Say It With Charts: The Executive’s Guide to Visual Communication (4th ed. 2001).

Creating flowcharts, charts, and graphs in Microsoft Word

  • Add A Drawing To A Document, https://support.office.com/en-us/article/Add-a-drawing-to-a-document-348a8390-c32e-43d0-942c-b20ad11dea6f (last visited August 23, 2017).
  • Saikat Basu, How to Create Stunning Flowcharts With Microsoft Word, http://www.makeuseof.com/tag/create-stunning-flowcharts-microsoft-word/ (last visited August 23, 2017).
  • Insert A Chart From an Excel Spreadsheet Into Microsoft Word, https://support.office.com/en-us/article/Insert-a-chart-from-an-Excel-spreadsheet-into-Word-0b4d40a5-3544-4dcd-b28f-ba82a9b9f1e1 (last visited August 23, 2017).
  • How to Add A Graph to Microsoft Word, http://www.wikihow.com/Add-a-Graph-to-Microsoft-Word (last visited August 23, 2017).

[1] “Wherever possible, use pictures, maps, diagrams, and other visual aids in your briefs. Some lawyers seem to think a word is worth a thousand pictures. The reverse, of course, is true. Seeing a case makes it come alive to judges.” Hon. Richard Posner, Effective Appellate Brief Writing, A.B.A. Litigation News (Spring 2010), https://apps.americanbar.org/litigation/litigationnews/trial_skills/appellate-brief-writing-posner.html. See also Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 293-94 (2d ed. 2014).

[2] Unlike brief writing, during a trial you might decide such repetition is useful to the jury.

[3] Woolley v. Rednour, 702 F.3d 411, 418 (7th Cir. 2012).

[4] Graham v. Jules Inv., Inc., 2014 COA 136, ¶ 13 (Colo. App. 2014).

[5] Bd. of Comm’rs of Grand Cty. v. Baumberger, 513 P.2d 1075, 1075–76 (Colo. App. 1973).

[6] Emery v. Medal Bldg. Corp., 436 P.2d 661, 662–63 (Colo. 1968).

[7] People v. Williams, 2016 COA 48, ¶ 42-43 (Colo. App. 2016).

[8] Hawg Tools, LLC v. Newsco Int’l Energy Servs., Inc., 2016 COA 176M, ¶¶ 27, 33 (Colo. App. 2016).

[9] Baig v. Coca-Cola Co., 607 Fed. Appx. 557, 558–59 (7th Cir. 2015).

[10] See also Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 127-30 (Practicing Law Institute 3d ed. 2008) (discussing use of lists and bullet points); Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 295-300 (2d ed. 2014) (same); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 73-77 (2015) (discussing same in an opinion’s Statement of Facts).

[11] In re Johnson, 325 Fed. Appx. 337, 339 (5th Cir. 2009).

[12] United States v. Newman, 490 F.2d 139, 144 (3d Cir. 1974).

[13] Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1333 (Fed. Cir. 2011).

[14] Int’l Union, United Mine Workers v. Jim Walter Res., Inc., 6 F.3d 722, 724 (11th Cir. 1993).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Use Quotations to Make a Point

Many lawyers fill briefs with quotations; too many quotations. A parade of quotations rarely helps readers. Here are some tips on when to use quotations and how to use them effectively.

Use Quotations Sparingly

Many briefs quote too often.[1] If you are analyzing the words in the quotation, use it. If the quotation has unique phrasing that pops, use it. But if you can say it better in your own words, don’t quote. Most of the time you can say it better and shorter by paraphrasing.[2]

Before

After

“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), quoting F.R.C.P. 8(a)(2). Complaints must contain a short and plain statement explaining why a claim succeeds. F.R.C.P. 8(a)(2).
“As the Court held in Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although complaints do not require detailed factual allegations, they require more than bare accusations of harm. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Complaints must state more than labels, conclusions, or a claim’s elements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Weave Quotations Into Your Argument

Here are some stereotypical introductions to quotations:

  • As the Supreme Court held in Smith v. Jones, “. . .
  • According to Smith v. Jones, “. . .
  • The statute reads: “ . . .
  • As one case held, “ . . .

Cut these. They add nothing except words. After you cut them, the meaning of the sentence is unchanged.

Then do even more. Legal writing specialist Ross Guberman provides several ways to enhance your argument with quotations. Rather than letting a quotation stand alone, each method ties the quotes to your case.[3]

Method 1: Introduce Quotations By Explaining How They Support Your Argument[4]

Introduce a quote by telling readers what you want them to take away from it.

Regardless of the policy’s merits, courts defer to codified legislative policies: “It is not for the courts to enunciate the public policy of the state if, as here, the General Assembly has spoken on the issue.” Grossman v. Columbine Med. Group, 12 P.3d 269, 271 (Colo. App. 1999).

  • During trial the victim emphasized repeatedly his confidence in the defendant’s identity: [quotes with record citations]

Method 2: Link a Party in Your Case With a Party in the Quotation[5]

Often briefs summarize a case and then compare the cited case to the case at issue. Combine these steps.

  • Where, as here, the interpreter did not testify, the agents present did not speak Spanish, and no one could testify whether the “interpreter indeed read the Defendant each of his Miranda rights off of the card” or “what the Defendant said in response to each of these warnings,” then the government has failed to meet its burden and
    the court must suppress the post-arrest statements. United States v. Sanchez-Manzanarez, 2012 WL 315870, *8 (S.D.N.Y. Feb. 2, 2012).

The prosecutor’s use of the term “lie” in closing argument is the exact conduct prohibited in Wend, where after reviewing the repeated use of “lie” in opening and closing arguments the Supreme Court held “a prosecutor acts improperly when using any form of the word ‘lie’ in reference to a witness’s or defendant’s
veracity.” Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

Method 3: Link Your Case’s Facts with a Quoted Legal Standard[6]

You can use quotations to merge a statement of law with the facts of your case.

  • The late disclosure of Brady material shortly before closing arguments “meaningfully alter[ed]” the defendant’s strategy on critical issues like “how to apportion time and resources to various theories when investigating the case, [and] whether the defendant should testify,” which is precisely why “the belated disclosure of impeachment or exculpatory information favorable to the accused violates due process.” United States v. Burke, 571 F.3d 1048 (10th Cir. 2009).
  • Plaintiff’s claim that the defendant gave him a dirty look falls well short of the “high standard” for intentional infliction of emotional distress by outrageous conduct, because the conduct is not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Coors Brewing
    Co. v. Floyd
    , 978 P.2d 663, 665-66 (Colo. 1999).

 


[1] “A remarkably large number of lawyers seem to believe that their briefs are improved if each thought is expressed in the words of a governing case. The contrary is true.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 127-28 (2008). See also Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 140-47 (2015) (discussing use of quotations in opinions).

[2] “After you have established your major premise, it will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your
own words than in the stringing together of quotations from various cases. Such a cut-and-paste approach also produces an air of artificiality, even of lack of self-assurance. You want the court to develop confidence in your reasoning—not in your ability to gopher up supporting quotations” Scalia & Garner, supra n. 1 at 128. “Whether you’re a judge, advocate, or journalist, stringing together quotations is not ‘writing.’ A surgical strike with lean quoted language will often beat bulky block quotation bursting all over the page. And yet sometimes, when binding precedent is worded just right, even an economical judge will want to preserve the language in the original court’s own words.” Ross Guberman, Point Taken, supra n. 1 at 140.

[3] See also Bryan A. Garner, Legal Writing In Plain English 101-04 (2d ed. 2013) (discussing how to weave quotes into a narrative); Ross Guberman, Point Taken, supra n. 1 at 121-126 (discussing how opinions draw analogies to cited authority).

[4] Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 175-79 (2d ed. 2014) (applying strategy to block quotations); Ross Guberman, Point Taken, supra n. 1 at 140-41 (“For starters, don’t just dump the quote and run. Introduce a long quote the way you would introduce a stranger to a friend—by telling the friend about what they have in common, and why this new person might be interesting to get to know.”).

[5] See Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 131-32 (2d ed. 2014).

[6] See id. at 133-34 (2d ed. 2014).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Show Me The Way: Using Headers More Effectively

Headers are helpful. Use them.[1]

Use Headers in a Statement of Facts

Think of all the good reasons you use headers in your argument section. Those same reasons apply to the Statement of Facts section. So use headers there too.[2]

When you do come across the rare Statement of Facts that uses headers, it often contains ones like these:

  1.  The December 22, 2010 Common Interest Agreement.
  2.  Defendant’s Negligence.

These are useless. The date and title of the document are probably irrelevant.[3] The header does not engage the reader because none of us want to read about common interest agreements. Neither header provides a fact essential to a court’s ruling. In fact, the second header is a legal conclusion (not a factual one). They are neither memorable nor relevant. In short, they say nothing about your case.

But it does not have to be this way. Ross Guberman provides a helpful example.[4] Watch how the government used headers in a Statement of Facts section to defend convictions in the Martha Stewart case.

  1.  The Government’s Case
    1.  “Get Martha on the Phone”
    2.  “Peter Bacanovic thinks ImClone is Going to Start Trading Downward”
    3.  Stewart Sells Her ImClone Stock
    4.  “Something is Going On With ImClone And Martha Stewart Wants To Know What”
    5.  Stewart’s Conversation With Mariana Pasternak
    6.  The Investigations Begin
    7.  The Tax Loss Selling Cover Story
    8.  January 3, 2002: Faneuil Lies to Investigators
    9.  Bacanovic Changes The Cover Story
    10.  January 7, 2002: Bacanovic Lies to Investigators
    11.  Stewart Alters Bacanovic’s Telephone Message
    12.  February 4, 2002: Stewart Lies to Investigators
    13.  February 13, 2002: Bacanovic Lies in Sworn Testimony
    14.  March 7, 2002: Faneuil Lies to Investigators Again
    15.  April 10, 2002: Stewart Lies to Investigators Again
    16.  Stewart’s False Public Statements
    17.  Faneuil Reveals The Truth[5]

When you read these headers, a story emerges. Not just any story, a story helpful to the prosecution.[6]

Let’s consider a simpler example. When you glance at a Table of Contents you see the following:

  1.  Farm Inc. Agreed to Deliver One Hundred Eggs to Pie Corp. Every Sunday.
  2.  One Sunday, Without Notice, Farm Inc. Delivered No Eggs.
  3.  Without Eggs Pie Corp. Could Not Bake or Sell Any Pies That Week.
  4.  That Week Pie Corp. Lost $1,000.

From these headers you can predict this lawsuit probably contains a breach of contract claim. The headers track the elements without using any legal terms, like “breach” or “causation.” More importantly, these four headers match the four factual findings needed to succeed on the claim.  If the court remembers nothing else except these four factual conclusions, the plaintiff’s statement of facts has done its job.

Phrase Argument Section Headers Persuasively

Frequently headers state a legal conclusion without any reasoning. For example,

  1.  The Complaint Fails to State a Claim Upon Which Relief Can be Granted.
  2.  The Existence of a Disputed Material Fact Precludes Summary Judgment.
  3.  Defendant’s Negligence Caused Damages.

These headers could appear in any brief for any case involving these types of motions or claims. They are weak and add little. Remember, when your reader gets to these headers, the reader already knows what you want. The caption page and opening said what you want and why. So the reader knows you think the complaint does not state a claim when the reader gets to the header saying the complaint does not state a claim. Add something new and helpful.

Make your headers stronger by stating why you win:[7]

  1.  Because the Complaint Does Not Allege the Third and Fourth Elements of Negligence, It Fails to State A Claim for Negligence.
  2.  Conflicting Expert Testimony About Whether The Landfill Continues to Cause or Threaten Environmental Damage Creates a Disputed Material Fact.
  3.  When the Driver Became Distracted While Texting on Her Phone, She Crashed Into the Car.

The Integrated Header: Visual Cues For The Reader

Usually we think of headers as an indented sentence prefaced with an outline-symbol like a roman numeral. So headers are abrupt and obvious. Not quite.

Some briefs integrate headers into the main text. They use portions of headers to start paragraphs. These integrated headers are not in the Table of Contents. Weaker but also less disruptive than traditional headers, they function as helpful visual cues and transitions.[8] These headers are neither better nor worse than traditional headers. They are an option. Use them when you deem appropriate.

Former United States Solicitor General Seth Waxman has a knack for these. Take a look.

Example 1:

Summary of Argument

I.  Implied dedication requires two elements: (1) the property owner’s unequivocal intent to dedicate land for a particular public use; and (2) and acceptance of that land for that use by the public. Only the first element, the landowner’s intent, is at issue here. . . .

[several paragraphs]

II. Appellants have not come close to establishing that the City intended—much less unequivocally intended—to irrevocably dedicate the four parcels at issue as parkland. . . .[9]

The roman numerals are not part of a traditional header. They introduce full main text paragraphs. In doing so, they visually break up points for the reader. They function as transitions without a transition word or phrase.

Example 2:

3. Appellants’ rule is singularly inappropriate in this case where the
landowner is the City and the property at issue is a street.

Finally, Appellants’ bid to jettison owner intent in favor of public use as the north star of the implied dedication analysis . . .

a. By elevating long continued public use to the ‘main determinant’ of dedication, Appellants’ rule would eviscerate the distinction between prescriptive rights—those acquired through . . .

[another paragraph]

b. Appellants acknowledge that their vision of implied dedication rests not on the City’s actual intent regarding the status of the DOT Strips, but instead on . . . [10]

Here Waxman uses letters to achieve the same function as the roman numerals above. Rather than including a full sub-header, he uses each letter to start a new point and a new series of paragraphs.

Example 3:

8. Social Science Does Not Support Any Of The Putative Rationales For Proposition 8.

Proponents of laws like Proposition 8 have advanced certain social-science arguments that they contend support the exclusion of same-sex couples from civil marriage. The proponents’ main arguments are (1) deinstitutionalization: that allowing same-sex couples to marry will harm the institution of marriage by severing it from child-rearing; (2) biology: that marriage is necessary only for opposite-sex couples because they can procreate accidentally; and (3) child welfare: that children are better off when raised by two parents of the opposite sex. Each of these arguments reflects a speculative assumption rather than a fact, is unsupported in the trial record in this case, and has in fact been refuted by evidence.

Deinstitutionalization. No credible evidence supports the deinstitutionalization theory on which petitioners heavily rely. . . .

[multiple paragraphs]

Biology. There is also no biological justification for denying civil marriage to same-sex couples. . . .

[multiple paragraphs]

Child Welfare. If there were persuasive evidence that same sex marriage was detrimental to children, amici would give that evidence great weight. But there is none. . . .[11]

The introduction establishes three counterarguments in a numbered list. The brief assigns each counterargument a title using an italicized word. Those italicized titles later serve as visual transitions.


[1] For more information on using headers effectively see Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 121-25 (Practicing Law Institute 3d ed. 2008); Bryan A. Garner, Legal Writing In Plain English 20-22 (2d ed. 2013); Ross Guberman, Point Made, How to Write Like the Nation’s Top Advocates 73-80 (2d ed. 2014); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 108-11 (2015) (discussing use of headers and sub-headers in opinions).

[2] See Ross Guberman, Point Made, supra n. 1 at 73-76 (discussing use of headers in Statement of Facts section).

[3] “Lawyers love narrative – and they adore dates and places. . . . And when, pages later, [the date] turns out to be wholly irrelevant, the judge will feel duped – a feeling that often leads to irritability and impatience. I would consider that a less-than-desirable start for one’s case.” Judge William Eich, Writing The Persuasive Brief, Wisconsin Lawyer (Feb. 2003), available at http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=76&Issue=2&ArticleID=614; Ross Guberman, Point Made, supra n. 1 at 69-71 (discussing alternatives to dates in a Statement of Facts).; Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 44-56 (2015) (discussing cutting irrelevant facts from court opinions).

[4] Ross Guberman, Free Martha? Not with these Headings!, Legal Writing Pro, https://www.legalwritingpro.com/articles/free-martha-not-headings/ (last visited August 3, 2017).

[5] Brief For the United States of America at 6-17, United States v. Martha Stewart and Peter Bacanovic, 433 F.3d 273 (2d Cir. 2006).

[6] Query whether the dates in these headers are needed. They might suggest several significant events in a short period.

[7] “The old test is still the best. Could a judge skim your headings and subheadings and know why you win?” Ross Guberman, Point Made, supra n. 1 at 93. For more advice on using headers in your argument section see id. at 93-106. See also Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 89 (2008) (describing Table of Contents as “primarily a finding tool” but also noting “many judges look at it first to get a quick overview of the argument. That’s one reason you should make your section headings and subheadings full, informative sentence.”)

[8] Ross Guberman, Point Made, supra n. 1 at 73 (giving examples of integrated headers in Statement of Facts).

[9] Brief for Necessary Third-Party Appellant-Respondent New York University at 38-40, Deborah Glick, et al. v. Harvey, et al., 25 N.Y.3d 1175 (N.Y. 2015).

[10] Id. at 59-60.

[11] Brief of Amici Curiae Kenneth B. Mehlman et al. Supporting Respondents at 10-12, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Good Advice, Better Advice: Rethink How You Use Authority

Briefs are too long. Some cases warrant lengthy briefing. Most do not. Shorter briefs are more than judicial preference.[1] Brevity strengthens your writing, clarifies your points, and pleases your audience.[2]

A rarely addressed problem is citing too much authority. When proofreading, many attorneys check a citation’s format and confirm it supports a proposition. But few assess whether to cut the citation or replace it with a better one.

Citations are about judgment. Consider these points.

String Citations Are Not a Problem; They Are a Symptom of a Problem

Nearly every legal writing CLE has a PowerPoint slide dedicated to the irredeemable brutality of string citations. Usually the presenter provides an exaggerated illustration like this:

Parties cannot waive the defense of lack of subject matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 382 (1998); Lightfoot v. U.S., 564 F.3d 625, 627 (3d Cir. 2009); American Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138 (1st Cir. 2004); Gardner v. U.S., 211 F.3d 1305, 1310 (D.C. Cir. 2000); Douglas v. E.G. Baldwin & Associates, Inc., 150 F.3d 604, 608 (6th Cir. 1998); Harris v. U.S., 149 F.3d 1304, 1308 (11th Cir. 1998); Chernin v. U.S., 149 F.3d 805, 812-13 (8th Cir. 1998).

Then the presenter condemns string citations for two to three minutes, with a verbal footnote that they are acceptable in rare circumstances like to survey multiple jurisdictions or to show a trend (or consistency) over time.

This advice is not wrong, but it can lead to wrong conclusions.

Astute attorneys hear the advice, return to the office, and dutifully apply it. They scan briefs for precisely what the presenter mentioned: a paragraph with a single sentence followed by a horde of citations spanning multiple lines. If they find a string citation, they cut it down or determine an exception applies. If they find no string citation, hurray! Either way, in the end the attorneys feel confident the number of citations used to support all the propositions is fine because there are no unhelpful string citations. That conclusion is a problem.

Worse, that conclusion misunderstands the problem. The CLE advice frames the problem as string citations. But the absence of unhelpful string citations only means there are no unhelpful string citations. It does not mean the number of citations is acceptable.

The problem is attorneys cite too much authority. Whether that authority appears in a string citation is irrelevant. After all, when does a series of citations become a string citation? After two? Three? Four? Do you restart the count after a new signal word? I do not know and I do not care because it does not matter. You must justify every citation, whether solitary or in a series.

Cutting one string citation from a brief fixes one spot and shortens your brief by a handful of lines. But editing all of your citations improves dozens of sections and can shed pages.

Less is More: Choose the Appropriate Type and Number of Authority

Shed your collegiate habits. Briefs are not a way to show how much research you did, or how smart you are. I understand the hours you spent researching the intricacies of replevin were tiring and frustrating. I understand how few people have the command of replevin you now possess. And I understand that this hard won mastery of replevin should go towards something. Fine, but not your brief.[3]

Your brief has one goal: persuade your audience.[4] If a citation does not help this goal, cut it. Have a reason for every citation you include.[5] Tie that reason to how the citation persuades your audience.

Not using every citation is counterintuitive. If you have the space you want to use every arrow in your quiver.  But too much authority weakens a brief.[6] Citations add length which means more time for your audience to lose focus and patience. You may lose credibility as your audience wonders why the brief is citing unnecessary authority. Too much authority also drowns substance in waves of citations.[7]

Consider a few examples.

Example 1:

A party must file an action for negligence within two years after the cause of action accrues. Section 13-80-102(1)(a), C.R.S. 2017; Colburn v. Kopit, 59 P.3d 295, 296 (Colo. App. 2002).

One proposition, two citations. Why cite two sources? Both are direct citations, meaning there is no signal (e.g. “see also”). The absence of a signal tells the reader the citations directly support the entire proposition. If they both support the entire proposition, you do not need two sources.

Choose one. If the General Assembly chooses a statute of limitations, it codifies this selection in statutes. These statutes bind courts. Here, the statute is clear. When Colburn states the statute of limitations, it is paraphrasing but not interpreting the statute. So the case adds nothing you do not get from the statute. The statute is the strongest authority. It is clear. Cut the case cite.

Example 2:

Courts dismiss negligence claims raised after the two year statute of limitations expires. Section 13-80-102(1)(a), C.R.S. 2017; Colburn v. Kopit, 59 P.3d 295, 296 (Colo. App. 2002).

Again one proposition, two citations. But the proposition is different. It speaks about the remedy courts apply to a tardy claim. The statute does not discuss (although perhaps it implies) the remedy. The case cites the statute, states the statute of limitations, and shows the remedy. It covers all the propositions you need.

Whether to also cite the statute is a judgment call. Although the case is probably sufficient, the statutory citation may help if a court wants to check for amendments or ensure Colburn correctly interprets the statute. This is a strategic decision and may depend on what your opponent contests.

Example 3:

A plaintiff may only succeed on a claim of denial of procedural due process if a state government injured or revoked a constitutionally protected property interest without proper procedural protections. U.S. Const. amend. XIV, §1; Schanzenbach v. Town of La Barge, 706 F.3d 1277, 1283-84 (10th Cir. 2013).

Only the case citation is necessary. The constitutional citation adds nothing. Case law, not the Constitution, establishes the contours of procedural due process. Unless your argument hinges on a textual analysis of the Due Process Clause (unlikely), there is no need to cite the clause.

Example 4:

The Due Process Clause prohibits state governments from depriving any person of life, liberty, or property without due process. U.S. Const. amend. XIV, §1. See also Schanzenbach v. Town of La Barge, 706 F.3d 1277, 1283-84 (10th Cir. 2013).

The citation to the Fourteenth Amendment without any signal tells the reader the Amendment directly states the proposition. The use of “see also” tells the reader the case supports the proposition, but does not directly state it. But a reader cannot tell why the case citation exists. It might add something; it might not. If you have a direct citation followed by a signal word with more authority, you will usually need to state why you included that new authority. Here, either add a parenthetical or cut the case citation.

Example 5:

A complaint must state with particularity the circumstances of a fraud.  F.R.C.P. 9(b).  Courts dismiss claims that fail to meet this heightened pleading standard. See, e.g., Rodriguez v. Bar-S Food Co., 539 F. Supp. 710, 720 (D. Colo. 1982). This requirement protects defendants’ reputations and puts them on notice so they can form a defense. Tatten v. Bank of Am. Corp., 912 F. Supp. 2d 1032, 1041 (D. Colo. 2012). Conclusory allegations are insufficient; the complaint must allege the time, place, and contents of the false representation. Conrad v. The Educ. Res. Inst., 652 F. Supp. 2d 1172, 1182-83 (D. Colo. 2009). The failure to identify the party who made the false statements requires dismissal. Id.

Five citations from four sources. This paragraph explains the general law on pleading fraud. A trial court is probably already familiar with these propositions and does not need a full backstory. Even so, surely one case supports all of these propositions. Do not cite five different sources when one suffices.[8]

Showing several courts have dismissed complaints that plead fraud adds little. After all, what if the other side could cite more cases where courts did not dismiss such complaints? This is a fact-specific analysis. What matters is how the law applies to the complaint in your case. If the complaint’s allegations are close to a case you found, great. If not, more cases will not make a difference.

The ideal authority is one case that supports all these propositions and dismisses a complaint with the most analogous allegations to your case. Next best is one case that supports all these propositions and dismisses a complaint for the reason you advocate (e.g. not identifying who made the false statements) even though the allegations are very different.

Meaningfully Choose Your Authority

If the answer to “Why is this citation here?” is “Because it supports the proposition” then you have not thought it through. This answer explains why you have a citation (as opposed to no citation). But it does not answer why you included this citation. Consider the same question rephrased: of the universe of all authority that supports the proposition, why have you chosen this one?

Step 1: Choose the Appropriate Type of Authority. Often multiple authorities lend support: constitutions, statutes, regulations, case law, legislative history, treatises, dictionaries, articles, etc. Have a reason why you chose one type of authority over another. Why cite a statute and not a case? Why a case and not a treatise?

Step 2: Choose the Appropriate Source. Once you decide on the type of authority, choose a particular source. For example, after you decide to cite case law you must decide which case to cite. Why cite this case instead of that case when both support the proposition? Potential answers include:

  • It is the most recent high court decision which makes it the most authoritative case law on point.
  • It is the seminal case that all the other cases cite.
  • We rely heavily on this case later in the brief so it will make the court’s life easier by having fewer cases to examine.

No one answer is better than the other and this list is not exhaustive. Attorneys may differ. Bottom line: have a reason for everything you do.


[1] “With the docket the way it is—and growing (federal court appellate filings went up again last year)—we judges can only read briefs once. We cannot go back and re-read them, linger over phrases, chew on meanings. Your main points have to stick with us on first contact—the shorter and punchier the brief the better.” Patricia Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 10 (1999). See also Judge William Eich, Writing The Persuasive Brief, Wisconsin Lawyer (Feb. 2003), available at http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=76&Issue=2&ArticleID=614 (estimating judges may only spend thirty minutes on the first reading of a brief).

[2] “Repetition, extraneous facts, over-long arguments (by the 20th page, we are muttering to ourselves, ‘I get it, I get it. No more for God’s sake’) still occur more often than capable counsel should tolerate. In our court counsel get extra points for briefs they bring in under the 50-page limit. Many judges look first to see how long a document is before reading a word. If it is long, they automatically read fast; if short, they read slower. Figure out yourself which is better for your case.” Wald, 1 J. App. Prac. & Process at 9-10.

[3] “You do not write for publication. You do not write to show your colleagues how smart you are, how well you know the subject matter, or how stupid you believe the judges to be. All this may well be true. But the name of the game is ‘persuade the judge.’ You don’t score points for anything else.” Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument, 24 (National Institute of Trial Advocacy, 2d ed. 2003). “You’re not writing a treatise, a law-review article, or a comprehensive Corpus Juris annotation. You are trying to persuade one court in one jurisdiction. And what you’re trying to persuade it of is not your (or your junior associate’s) skill and tenacity at legal research. You will win no points, therefore, for digging out and including in your brief every relevant case. On the contrary, the glut of authority will only be distracting. What counts is not how many authorities you cite, but how well you use them.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 125-26 (2008).

[4] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 59 (2008) (“The overarching objective of a brief is to make the court’s job easier. Every other consideration is subordinate.”)

[5] “Conciseness doesn’t mean fewer words; it is the omission of needless words.” Eich, supra n. 1.

[6] “A brief that is readable and to-the-point will make it much easier for the judges to understand and quickly grasp your points, and they will be encouraged to spend more time with your arguments. Unnecessary length, on the other hand, will often result in your strongest points getting lost in the shuffle.” Eich, supra n. 1.

[7] See Alex Kozinski, The Wrong Stuff, 1992 BYU L. Review 325, 326 (1992) (“Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.”); Patricia Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 9 (1999) (“The more paper you throw at us, the meaner we get, the more irritated and hostile we feel about verbosity, peripheral arguments and long footnotes.”)

[8] “As for governing authority, if the point you are making is relevant to your reasoning but is neither controversial nor likely to be controverted, a single citation (the more recent the better) will suffice. Anything more is just showing off to an unappreciative audience.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 126 (2008).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

The Lawless Landscape of Legal Writing

Editor’s Note: CBA-CLE Legal Connection is pleased to present a new series of legal writing columns authored by Michael Blasie. Michael Blasie began his career as a commercial litigator for Cooley LLP in New York City. He recently moved to Denver, where he is a Law Clerk to Hon. David Richman of the Colorado Court of Appeals. Welcome, Michael!

Think. That’s the key. Good legal writing is not about following rules. Good legal writing is good judgment.[1] Test and improve your judgment with these two guidelines.

Have A Good Reason For Everything You Write

Many attorneys stop thinking about legal writing after a few years of practice. They form habits. They think they know what certain briefs should look like. They stop choosing and begin defaulting.[2] This is a problem.

Although you might not “always” or “never” write a brief a certain way, you should always have a good reason why you wrote a brief a certain way. Why did you write it this way instead of that way?

The reason may be responsive; e.g., at a recent CLE the judges of this court said they find it helpful when briefs do [x]. Or it may be pragmatic; e.g., the court’s rules require [y]. Or perhaps the reason comes from judgment; e.g., this citation warrants a fuller multi-sentence explanation rather than a parenthetical because [z]. All fine. Just have a reason, and make it a good one.

“Because that is how it is done” or “Because that is how [name of other attorney/institution] does it” are not good reasons. Here’s why.

Consider this standard introduction to a brief:

Defendants Profitable, Corp. (“Profitable”) and Not Me, Inc. (“Not Me”), (collectively “Defendants”), respectfully submit this brief in opposition to the motion filed by plaintiffs Harmed Corp. (“Harmed”) and XYZ, Inc. (“XYZ”) (collectively “Plaintiffs”), pursuant to C.R.C.P. 59(e), to amend the judgment filed herein on January 1, 2017 (“Judgment”).

I see this introduction in almost every brief. Why does it exist? You might say it identifies who wrote the document, what the document is, and what relief the authors’ seek. But I don’t think that is why people include it. That reasoning is engineered after-the-fact. Instead people probably write this paragraph because they always have. They saw it in every template they received as a young attorney and they have seen it in most briefs since. So we all do it, for no reason.

Reexamine this introduction in its full context:

 

County Court, Denver County, Colorado
1437 Bannock Street, Room 100
Denver, Colorado 80202, 720-865-7840
____________________________________________________________
Plaintiffs: HARMED CORP. and XYZ, INC.,

v.

Defendants: PROFITABLE, CORP. and NOT ME, INC.
____________________________________________________________

Charisma Genius, Esq.
All We Do Is Win, LLP
123 Main Street
Denver, CO 80204
____________________________________________________________

DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ C.R.C.P. 59(e) MOTION TO AMEND THE JUDGMENT

____________________________________________________________

Defendants Profitable, Corp. (“Profitable”) and Not Me, Inc. (“Not Me”), (collectively “Defendants”), respectfully submit this brief in opposition to the motion filed by plaintiffs Harmed Corp. (“Harmed”) and XYZ, Inc. (“XYZ”) (collectively “Plaintiffs”), pursuant to C.R.C.P. 59(e), to amend the judgment filed herein on January 1, 2017 (“Judgment”).

 

Recall the purported purposes of the paragraph: to identify who wrote the document, what the document is, and what relief the authors’ seek. I’ll accept it does that. Now explain why we have captions.

The same reasons.

This introduction is wholly redundant with the caption. I know who the authors are, what the document is, and the relief sought because it is in giant capital letters one inch above the introduction.[3]

Approach this introduction from a different angle. If you cut this paragraph what would happen? For starters, most readers would not notice because they reflexively glance over the paragraph anyway. It certainly would not confuse your readers. After all, you have never read an opinion that started with “This is an opinion by Chief Justice Roberts in the case of Smith v. Jones.” Level of confusion: zero. But cutting the paragraph would reduce your word count and provide a chance to hook your audience.

Although this introduction does not hurt your brief, it fails to strengthen it. It blows the opening. Liken it to comedians who open with “How is everyone doing tonight?” Wasted words, wasted time, wasted opportunity. You could have hooked your audience and you didn’t.

True, this introduction could be helpful in some cases. For example, if you represent a third party intervener, this opening could introduce the party and explain its relationship to the case. Or perhaps you use it to avoid confusion when several motions have been filed with similar titles. Use this introduction when you have a good reason.[4]

Lastly, a few stylistic points. Many attorneys compulsively define terms with quoted phrases inside parentheticals. Stop. Unless you have a good reason. Here, there is no need to define all the defendants in the case as “collectively ‘Defendants.’” Obviously the term “Defendants” refers to all the defendants in the case. Such a definition might be useful if you are referring to some, but not all, of the defendants (e.g. “the Colorado Defendants”). Similarly, you can shorten party names (“Not Me” and “XYZ”) throughout the brief without “defining” them and without any risk of confusion. Likewise, if there is only one judgment, then “Judgment” refers to it. This habit is one we think helps readers, but often causes more harm than good. [5] It is a tool that works sometimes. Use it when you have a good reason. Don’t when you don’t. Good writing is good judgment.[6]

Tie Your Reason to How You Will Persuade Your Audience

A good reason is not enough because not all good reasons persuade. You must tie that reason to how it persuades your audience.

For example, legal writing guru Bryan Garner advocates putting citations in footnotes. Garner cites benefits like increasing readability, exposing poor writing, and enhancing the main text discussion of authority.[7] These are good reasons.

But do not neglect your audience. Few judges sanction this practice. Most judges despise footnotes, or at least view them skeptically. Reading a brief with dozens of footnotes will certainly breach expectations and could cause intense frustration.

Suppose you are appealing a criminal conviction. In a lengthy but carefully compelling narrative you weave together the defendant’s unique circumstances, understandable actions, and unfair treatment during the case. Then you a raise a single issue about whether the trial court erred by denying a challenge to a juror who had difficulty understanding voir dire questions and difficulty communicating. Your compelling narrative may elicit sympathy and reflect a mastery of storytelling, but your reader will likely see it as wholly divorced from the legal issue. And a judge may view it as an appeal to emotion without arguing the applicable law.

Finally, most legal writing advice assumes a single audience—the court. But practitioners often have multiple audiences, like senior attorneys and clients. Consider all of these audiences when choosing a writing strategy.

 


[1] See Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 59 (2008) (“But whenever you are convinced that departing from any of our recommendations, or from any convention, will make the court’s job easier, depart.”)

[2] See Robert M. Russel, Rhetoric for Appellateers 19 (Handout, March 2015).

[3] See id. at 92 (“Whatever you do, don’t allow this section [the introduction] to duplicate what is written elsewhere. Repetition bores, and boredom invites skimming.”)

[4] For ideas on other ways to start a brief, see Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 149-73 (Practicing Law Institute 3d ed. 2008); Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 3-11 (2d ed. 2014); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 3-39 (2015) (discussing introductions to opinions).

[5]“There also are lawyers who are singularly devoted to what I call double-identification. They love unnecessary parentheses; and the more unnecessary the better – even if the only sure result is the reader’s total loss of interest in what’s being said.” Judge William Eich, Writing The Persuasive Brief, Wisconsin Lawyer (Feb. 2003), available at www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=76&Issue=2&ArticleID=614.

[6] For advice about how to reference parties and when to define terms, see Bryan A. Garner, Legal Writing In Plain English 57-62 (2d ed. 2013); Alex Kozinski, The Wrong Stuff, 1992 BYU L. Review 325, 328 (1992); Guberman, Point Made, supra n. 4 at 288-89; Scalia & Garner, supra n. 1 at 120-22.

[7] Scalia &. Garner, supra n. 1 at 132-33.

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.