July 21, 2018

The Grammar Dilemma: Which Rules Are Worth Knowing

“None of you are guilty” or “None of you is guilty”? Can I use “since” as a synonym for “because” or can I only use it to reference time? One space or two between sentences? Is it email or e-mail? Some people have strong feelings about these kinds of questions. But many exasperate “who cares?!”

We are lawyers. We are busy. We have limited time. When is it worth perusing a six-inch thick book to find a grammar rule? Almost never.

Nonetheless, to write clearly you need to understand the ambiguity of English grammar.

The Next Person That Recommends Strunk & White . . .

Since freshman orientation people have always told me to worship Strunk and White’s Elements of Style. I’m pretty sure 98% of those people have never read the book. I’m equally sure 99% of the U.S. population has not. These statistics are not backed by data, just my gut. But in fairness, most of our grammar sense comes from our gut—if this phrase “sounds” right it must be right. Turns out, the Gut Theory of Grammar works pretty well. It works pretty well because there are no grammar rules. Let’s circle back to the Elements of Style.

Most people recommend the Elements of Style because other people recommended it to them. This daisy chain advice is so long no one remembers where it started. But surely the book gained credence for a reason.

Who were Strunk and White? They were co-chairs of the National Commission of American English created by President Nixon to develop consistency in how American students learned the language. Just kidding. There is no commission. Unlike France, the United States has no official body that determines language rules.[1] Strunk and White are two people who sat down to write a book about grammar. Strunk was a college professor who authored the original edition around 1919.[2] White, who authored Charlotte’s Web, revised the book in 1959.[3] Neither had unique authority to assert anything was or was not a rule.

But surely the wide acceptance of the Elements of Style gave it credence after-the-fact? Nope. It’s one thing to wear a t-shirt with a nerdy grammar pun like “Poor Grammar Makes Me [sic].” It’s a different level to publish an article in the Chronicle of Higher Education titled “50 Years of Stupid Grammar Advice” tearing into Strunk & White. But that’s what Professor Pullum did.[4] He describes Strunk & White as “grammatical incompetents” and their advice as ranging “from limp platitudes to inconsistent nonsense” that has “significantly degraded” students understanding of English.[5] Ouch. And he’s not alone. Others have called the book unsystematic, chaotic, and unhelpful.[6] But, to be clear, the book still has supporters.[7] And not everyone agrees with Professor Pullum.[8]

It’s Much Worse Than You Think

Even if the Elements of Style is not perfect (and presumably no other book is), the legal community might silently agree on certain rules. Putting aside obscure stylistic choices, surely we agree on essentials like what a word means? Buckle up.

Since time immemorial teachers and bosses pounced on subordinates for confusing “literally” and “figuratively.” Something is literally true when it can and did happen. It is figuratively true when it cannot or did not happen. So “When I heard the news my heart stopped” is figuratively true, unless after hearing the news my blood stopped circulating in which case it is then literally true. Only not. Consult a dictionary to discover literally and figuratively are sometimes synonyms. Merriam Webster has a persuasive article and video defending the definitions and explaining how authors can use “literally” hyperbolically to mean “figuratively.”[9] There’s an indie romantic comedy here where former antonyms become synonyms.

Here’s another skull-buster. Most of us bleed from the ears when we hear the word “irregardless.” A Pavlovian reflex shocks our system with feelings of valley-girl bastardized English. But oh yes, you guessed it. It is a word. In fact, one of Merriam Webster’s lexicographers (the people that write dictionaries) made a video defending it.[10] “Irregardless” means “empathically regardless.”[11] Oddly, the lexicographer recommends not using the word because so many people think it is not a real word.[12]

English grammar is a mess.

What to Do

We want our readers to find us credible and to understand what we write. But grammar rules are unclear. And we are not going to attach an appendix showing we correctly used a comma on page six.

Begin by accepting the inevitable. You usually have no idea what grammar rules your audience subscribes to. A judge might know a rule, not know a rule, or know a rule that is not a rule.

Next, adapt to your audience. To write clearly you need to know what grammar rules exist—real rules, discredited rules, misunderstood rules, all rules. Even with maximum effort, you cannot avoid breaking some rule believed by someone somewhere. But, with this understanding you can ensure your writing is clear.

When a Grammar Rule is Unclear, Strive For Clarity

When your writing implicates an unclear grammar rule, prioritize clarity. Consider the that/which rule:

The Safety Instructor asked the student to get the gas tank, which has red tape on it.

The Safety Instructor asked the student to get the gas tank that has red tape on it.[13]

In the first sentence there is one tank and it has red tape. [14] “Which” introduces additional information. [15] So, if the student were just told “Go get the gas tank” the student would return with the same tank because only one exists. [16] By contrast, in the second sentence “that” introduces essential information; there are multiple tanks and the instructor wants the one with red tape.[17]

But you cannot count on your reader taking away this distinction. Your reader may not know the rule or may have the rule reversed. So if it is important to understand there were multiple tanks and the instructor asked only for the one with red tape, you need to do more.

You have a few options. You can avoid the that/which rule by rewriting the sentence more explicitly: there were eight tanks and the instructor asked for the one with red tape. Or you can add a clarifying sentence: When the student went into the storage room he saw a pile of tanks and grabbed the one with red tape.

Ultimately, awareness of ambiguous grammar cannot prevent a reader from enforcing a random grammar belief. But that awareness can help us ensure the reader gets our message.

If Most Judges Believe a Rule, Follow It

Recall the figuratively/literally and irregardless examples. There we learned some grammar beliefs are incorrect. But you being correct according to an external source is irrelevant to your case. Write for your audience. If the court has certain grammar preferences, follow them.

Think of a basic rule indoctrinated into you with no reasoning behind it. A rule like capitalize the first letter of each sentence. if you stopped capitalizing those letters, would it confuse anyone? would readers misinterpret your words? nope. but everyone would notice and everyone would think you are wrong. the historical reason for this rule doesn’t matter. even if you found a source saying it is unnecessary, the result will only hurt you.

Although few courts publish elaborate style guides, you can discern grammar preferences from court opinions, former law clerks, and CLEs with the judges. Use that information to preserve credibility and avoid disruption.


When it comes to grammar, write for clarity not accuracy.

[1] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 196 (2004).

[2] William Strunk Jr.; E.B. White, The Elements of Style xiii-xviii; 87 (4th ed. 2000); Geoffrey K. Pullum, “50 Years of Stupid Grammar Advice,” The Chronicle of Higher Education, p. 1 (April 17, 2009), available at http://www.lel.ed.ac.uk/~gpullum/50years.pdf.

[3] Strunk &White, supra n. 2 at 1; Pullum, supra n. 2 at 1.

[4] Pullum, supra n. 2 at 1

[5] Id. Pullum didn’t let it go after only one article: Geoffrey K. Pullum, “The Land of the Free and The Elements of Style,” 26 English Today 2, 102 (June 2, 2010), available at http://www.lel.ed.ac.uk/~gpullum/LandOfTheFree.pdf.

[6] Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 9-10 (3d ed. 2016).

[7] See, e.g., “The 100 Best Nonfiction Books: No. 23 The Elements of Style by William Strunk and EB White (1959),” The Guardian, available at https://www.theguardian.com/books/2016/jul/04/100-best-nonfiction-books-all-time-elements-style-william-strunk-eb-white.

[8] To see how some of Pullum’s critiques may be overstated, see Ross Guberman, “Did Strunk & White Give “Stupid Advice?,” available at https://www.legalwritingpro.com/articles/strunk-white-give-stupid-advice/ (last visited May 20, 2018).

[9] Merriam-Webster Dictionary, “Did We Change the Definition of ‘Literally’?,” https://www.merriam-webster.com/words-at-play/misuse-of-literally (last visited May 20, 2018); Merriam-Webster Dictionary, “Literally- Merriam Webster- Ask The Editor,” https://www.youtube.com/watch?v=Ai_VHZq_7eU (last visited May 20, 2018).

[10] Business Insider, “‘Irregardless’ is a real word – you’re just using it wrong,” https://www.youtube.com/watch?v=bEJ2HF3xuFk (last visited May 20, 2018).

[11] Id.

[12] Id.

[13] This is a variation of the rake example provided in Gopen, supra n. 1 at 5.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

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.

Forging New Writing Conventions: Treat Active and Passive Voice Equally

Seemingly everyone loves critiquing passive voice. Haters have to hate.

The common advice to “avoid passive voice” is wrong. Actually, it’s worse than wrong. It’s a pyramid of wrongs. The advice, as a conclusion, is wrong. So are its premises. Most advice-givers misunderstand what passive voice is. And they misunderstand its advantages and disadvantages. Much of the time, people heard this advice before, never thoughtfully considered it, and repeat it without much thought. So it’s closer to being a rumor than it is to being good writing advice. Open your mind for the next five minutes and let’s fix this.

Even if you know nothing about passive voice, “avoid passive voice” facially makes little sense. It can only have two effects. Some listeners apply it wholesale without discretion, mechanically searching and destroying passive voice. For them, the advice strips away judgment and any notion passive voice could ever help. To other listeners the advice makes no sense. You don’t have to be an evolutionary linguist to know the passive voice must exist for a reason, and we use it when we speak without any problems. These listeners ignore the advice, never develop judgment, and never learn when passive voice helps and when it hurts. Both outcomes are unfortunate and avoidable.

The best advice is much more complicated. Fortunately, as lawyers we specialize in complicated.

What is Active Voice and Passive Voice?

If you are confident you know the difference between active and passive voice then you should be equally confident you are probably wrong. Let’s start with the easy part.

English has two voices: active and passive. In the active voice, the subject performs the verb’s action.[1] In the passive voice, the verb’s action is performed on the subject.[2] These definitions are more clear when you compare sentences written in each voice:[3]


Active Passive
The teacher told us to use the active voice. We were told to use the active voice.
The police questioned the suspect. The suspect was questioned.
I made a mistake. Mistakes were made.


Critically, the passive voice is not the use of particular verbs. Many people try to spot the passive voice by looking for variations of the verb “to be” like “was,” “were,” “is,” “would,” or “had been.” Wrong. This sentence uses active voice: “He was unhappy the provision of services had been so slow.”[4] Don’t feel bad. Everyone does it. Take this example from the New Yorker describing Bernie Madoff’s sentencing:

Two sentences later, Madoff said, “When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients from the scheme.” As he read this, he betrayed no sense of how absurd it was to use the passive voice in regard to his scheme, as if it were a spell of bad weather that had descended on him.[5]

Where precisely is the passive voice here? “It would end” and “I would be able to” are active voice.

The best way to find the passive voice is to track the definition above: when the verb does not modify the doer. If you want to be more specific, look for variations of “to be” “to get” or “to have” plus a past-tense verb (a past-participle to be precise). [6]

The Classic “Advantages” of the Active Voice

Card-carrying members of the active voice fan club praise it as more concise, concrete and not abstract, lively, and the default expectation of readers.[7] None of these are always true. As a simple example “The motion was denied”(passive) is four words when “The court denied the motion” (active) is five.

What is true is that the active voice is, by definition, clear about who the actor is. When that feature is important to you, use it.

Which is Better: Active or Passive?

Neither. Neither is superior or inferior to the other. There is no rule favoring one, with delineated exceptions permitting the other. There is no presumption or preference.

Passive voice and active voice are two options. They serve different purposes. Use whichever serves your purposes.

When to Use Passive Voice

“If you always avoid the passive, you sacrifice one of the subtlest, most versatile tools the English language affords us.”[8] Sometimes passive voice is helpful, like in these somewhat overlapping scenarios:[9]

The actor is obvious: [10]

“The motion was denied.” We know a court denied it. “Defendants are entitled to summary judgment when . . .” We know the law is what entitles a party to summary judgment under certain circumstances. No one is confused.

The actor is irrelevant or distracting:[11]

“The subpoena was served January 19th.” By who? Phil, Barbara, Subpoena Services Inc.? Does it matter? If what matters is when the subpoena was served then there is no need to introduce a new and irrelevant character to your story.

The actor is unknown:[12]

“Stonehenge was built around 2200 BCE.” Or, if your defense is that the crime occurred but the defendant did not do it, “The victim was murdered later that night.”

To emphasize the action over the actor/To tell the story of the recipient of actions:[13]

In a suppression motion you write “Mr. Smith was ordered to freeze and hand over identification, then his suitcase was searched, and then he was handcuffed.” Who did these things? Government actors. Which government actors? The defense does not care. Whether it was Officer Jones or Agent Smith is irrelevant. The defense neither needs nor wants the court to keep track of that. Passive voice keeps the focus on the defendant and things being done to him.

For the same reason a tort plaintiff’s story might read “Stevens was told it was safe by the defendant. Stevens was told it was legal by the defendant. Stevens was told he could trust the defendant. Stevens was lied to by the defendant.”[14]

This concept can be a bit tricky. But it is perhaps the most important voice decision an author makes. Passive voice emphasizes different actors in your story than active voice. George Gopen provides this helpful illustration:

Smith had notified Jones on the morning of April 7 concerning the lost shipment. (emphasizes Smith’s actions)

On the morning of April 7, Jones had been informed of the lost shipment by Smith. (emphasizes Jones’s knowledge)

The lost shipment had been disclosed by Smith to Jones on the morning of April 7. (emphasizes moment of lost shipment)[15]

This principle can also help when one subject is the recipient of multiple unrelated actions. “Securities agreements are sophisticated contracts. They are usually drafted by specialized attorneys. They are subject to particular regulations. They should only be signed after a careful read.” The passive voice keeps the focus on securities agreements.

To connect one sentence with the next sentence:[16]

“The committee presented the award to Tom. Tom was arrested the next day.”[17] In this couplet the direct object of the first sentence becomes the subject of the next.

To emphasize the end of a sentence.

“When he walked through the door, the victim was already dead.”[18]

To create abstraction:

“In the eyes of the law, all persons are created equal.”[19]

For irony:

“The passive voice should not be used.”


Don’t prefer or avoid passive voice. Don’t prefer or avoid active voice. They have different effects. Choose the voice that suits your needs.

[1] “Active,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/active (last visited May 15, 2018).

[2] “Passive,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/passive (last visited May 15, 2018).

[3] These examples are from “5 Writing Rules Destroyed By The Dictionary,” Merriam-Webster Dictionary (last visited May 15, 2018), https://www.merriam-webster.com/words-at-play/5-writing-rules-destroyed-by-the-dictionary/never-use-the-passive-voice.

[4] Ross Guberman, “Are You Passive-Aggressive?,” Legal Writing Pro (last visited May 15, 2018), https://www.legalwritingpro.com/articles/are-you-passive-aggressive/.

[5] Nancy Franklin, “The Dolor of Money,” The New Yorker (March 23, 2009), https://www.newyorker.com/magazine/2009/03/23/the-dolor-of-money. See Jan Freeman, “What We Get Wrong About the Passive Voice,” The Boston Globe (March 22, 2009), http://archive.boston.com/bostonglobe/ideas/articles/2009/03/22/active_resistance/ (pointing out error in New Yorker article).

[6] Guberman, supra n. 4; “Active and Passive Voice,” Wheaton College (2009), https://www.wheaton.edu/academics/services/writing-center/writing-resources/active-and-passive-voice/.

[7] See Bryan Garner, Legal Writing in Plain English 36 (2d ed. 2013); Richard Wydick, Plain English For Lawyers 27-31 (5th ed. 2005).

[8] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 153 (2004).

[9] See also id.; George Gopen, “Who Done It? Controlling Agency in Legal Writing- Part I,” 39 Litig. 2 (Spring 2013), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_7_controlling_agency_pt2.pdf; “Active and Passive Voice,” supra n. 6.

[10] See generally Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 144 (3d ed. 2016).

[11] Wydick, supra n. 7 at 31. Accord Goldstein & Lieberman, supra n. 10 at 144.

[12] Goldstein & Lieberman, supra n. 10 at 144.

[13] George Gopen, “Why the Passive Voice Should be Used and Appreciated- Not Avoided,” 40 Litig. 2 (Winter 2014), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_10_why_the_passive_should_be_used.pdf; Goldstein & Lieberman, supra n. 10 at 144-45.

[14] Gopen, supra n. 13.

[15] Id.

[16] Goldstein & Lieberman, supra n. 10 at 144-45; Gopen, supra n. 8 at 65-70.

[17] See Wydick, supra n. 7 at 31 (using a variation of this example).

[18] Id. (using a variation of this example).

[19] Id.


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.

Forging New Writing Conventions: Parentheticals (And How We Use Them)

Putting citations after sentences sacrifices readability for credibility. The convention has critics but is here for the immediate future.[1] Its sister convention is putting parentheticals after citations. This convention rarely gets any discussion. It should.

When to Use Parentheticals

Every law student learns to use parentheticals. They take different forms. Often they are incomplete sentences explaining a point about the source, usually starting with a present participle—an “ing” word like “holding,” “finding,” or “concluding.” We use them often. Why?

Any answer includes a need to convey information about the source. But why convey that information in a parenthetical? This is the question you need to answer before using one.

There is a difference between each of the following:

“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.” People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16.

People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16. (“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.”)

Summary judgment is only appropriate when there are no disputed material facts. People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16.

People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16 (summary judgment is only appropriate when there are no disputed material facts).

When you include a parenthetical you make a series of choices. First, you choose to include rather than exclude information. Second, you decide how to phrase the information, either quoting, paraphrasing, or a little of both. Third, you determine where to put the information, either in the main text before the citation or in a parenthetical after the citation. That placement has consequences.

Those consequences come from how we read briefs. We all learn to write using parentheticals. But we do not necessarily learn to read parentheticals, or at least not to read them how the writer intends.

Here’s the writer’s perspective. The information is important enough to go in the brief, and belongs at the source’s hip.

But this placement has other consequences to the reader. The parenthetical is separate the main text. Because it stands apart, the reader must connect the main text information and the parenthetical information. A parenthetical placement may also suggest the information is less important than the main text. Indeed, part of Bryan Garner’s argument for putting citations in footnotes is that important authorities should be named and discussed in the main text, and “discussion of governing and persuasive authorities is enhanced because it can no longer be buried in parentheticals following citations.”[2] Plus, a parenthetical lengthens the citation, often by several lines. That lengthening causes greater disruption. Remember, main text citations trade readability for credibility. The longer the citation, the less readable the pros, the more unbalanced the trade.

Applying these factors, here are some scenarios that tempt readers to skip or gloss over parentheticals.

The main text suggests the parenthetical is unnecessary: If the main text sentence states an obvious or well-known proposition, a parenthetical seems unnecessary. Readers are always more tempted to skip portions that seem unnecessary. For example:

The statute of limitations for a bad faith tort claim is two years. Brodeur v. American Home Assur. Co., 169 P.3d 139, 151 (2007) (dismissing claim filed over two years and ten months after cause of action arose).

We all know what a statute of limitations is and the consequences of filing a tardy claim. The information in the parenthetical adds nothing. But that’s just the reader’s guess.

The reader’s triage comes before reading the parenthetical. Based on the main text sentence, the reader determines the parenthetical probably adds nothing and therefore is not worth reading. So the takeaway is to make sure the main text sentence preceding the citation sets up the need for a parenthetical. Great information does you no good if the reader never reads it. Secondarily, make sure the parenthetical’s information adds to your brief so when the reader does get to it, the information advances your argument.

The parenthetical is very long: Lengthy parentheticals rarely work. They are too much. They squeeze lists of facts or reasons into a run-on incomplete sentence. At the same time they drag out a citation, which disrupts the main text’s flow and often makes it difficult to find the next sentence. A common example is a parenthetical that tries to single-handedly apply a multi-factor test. For instance, a parenthetical applying People v. Humphrey’s twelve-factor assessment to determine if a Miranda waiver is valid.[3] Or a single parenthetical discussing how Effland v. People found five factors weighing against a finding of custody and fifteen in favor.[4] A parenthetical about one factor may be appropriate. But a discussion of the entire analysis or several factors is too much for one incomplete sentence bracketed by parentheses.

When to use parentheticals, what information to put in them, and how to convey that information requires judgment. But odds are you overuse them. To refine your judgment analyze People v. Brooks, which has over sixty case citations and only one with a substantive parenthetical explanation.[5] People v. Howard-Walker has over one-hundred case citations, only four with explanatory parentheticals.[6]

How to Phrase Parentheticals

An equally valid question is why we start parentheticals with a present participle (those “ing” words). Law school taught us this probably because the Bluebook rule on parentheticals says explanations not quoting the source “usually begin with a present participle.”[7] Why the Bluebook takes this position is unclear. Even if you live and die by the Bluebook, “usually” means not always.

Given the widespread use of “ing” words, would cutting them throw the reader or alter the meaning? See for yourself.

For all these reasons, we conclude that the issue was sufficiently preserved. See People v. Syrie, 101 P.3d 219, 223 n.7 (Colo.2004) (an issue is preserved where the trial court has “adequate opportunity to make factual findings and legal conclusions on any issue that is later raised on appeal”)

. . .

In all of them, the courts considered extrinsic circumstances only to determine whether the images were created to be viewed for sexual gratification. See Batchelor, 800 P.2d at 604 (that the defendant concealed the photos of his naked nine-year-old daughter, took the pictures at night, posed the child, and took the pictures secretly showed that he took the pictures for his own sexual gratification); T.B., ¶ 34 (that the defendant had texted the victims a picture of his erect penis when he solicited nude pictures from the victims showed that the pictures taken by the victims were intended for the defendant’s sexual gratification); Grady, 126 P.3d at 222 (the defendant produced photos of teenage models that he also posted on a website entitled “True Teen Babes”); Gagnon, 997 P.2d at 1284 (in deciding whether pictures taken by the defendant of a teenage girl in sexually suggestive poses and clothing were produced for sexual gratification, the court considered that “the pictures of the victim were found along with a large collection of other material the trial court described as adult pornography”).”

. . .

Images that are otherwise constitutionally protected images could become unprotected based merely on the subjective response of a particular viewer. See Batchelor, 800 P.2d at 602 (pictures depicting nude children for legitimate purposes are constitutionally protected).[8]

This excerpt shows “ing” words are often not needed. Commonly used present participles like “holding,” “finding,” and “concluding” are usually unnecessary because they are implied. In fact, it is difficult to imagine an example where such words make a difference. Take a look:

Smith v. Jones, 123 F.2d 345 (12th Cir. 2018) (finding statute of limitations barred claim).

Smith v. Jones, 123 F.2d 345 (12th Cir. 2018) (statute of limitations barred claim).

By contrast, openings like “comparing,” “reaching,” and “distinguishing” add meaning to a parenthetical.

You can decide when a present participle adds to the parenthetical. But omit them when they are unnecessary. Break the habit.

[1] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 132-33 (Thomson/West 2008).

[2] Id. at 132.

[3] 132 P.3d 352, 356 (2006).

[4] 240 P.3d 868, 875 (2010).

[5] 2017 COA 80.

[6] 2017 COA 81M.

[7] The Bluebook: A Uniform System of Citation R. 1.5(a)(i), at 59 (Columbia Law Review Ass’n et al., eds., 19th ed. 2010).

[8] People v. Henley, 2017 COA 76, ¶¶16, 28-29.


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.

Forging New Writing Conventions: A Diplomatic Approach to the War on Adjectives and Adverbs

Perhaps the greatest problem with brief writing is that lawyers start by writing a brief.

We have read hundreds of briefs. So we think we know what a good brief looks and sounds like. That bias impedes us.

Most of what we read is not well written. Professors do not choose cases because they are well written. Westlaw and LexisNexis do not sort cases by writing caliber. And most briefs have mediocre or subpar writing. So our challenge is not mirroring what we spend most of our days reading.

Oddly, writing advice makes writing well harder. We learn writing as a series of rules or convenient lists of “pet peeves” — don’t splint infinitives, avoid the passive voice, never start a sentence with “and,” etc.[1] These rules accomplish their goals in the sense that they avoid egregious errors. But the rules preventing you from writing a horrible brief paradoxically prevent you from writing a great one.

Think For Yourself

Overcoming the impulse to write a formulaic brief requires a unique solution. That solution is more than revising rules. It is rebuilding how you think about writing, what you imagine when you start drafting a brief.

Enter First Principle Thinking. “First principles thinking is the act of boiling a process down to the fundamental parts that you know are true and building up from there.”[2] This concept gained popularity in engineering as a way to innovate.[3] For example, one reporter described Tesla’s chief designer using this concept: “The idea is to avoid thinking by analogy — let’s make this car look like that car, just sort of different or better — and instead deal with problems by stripping them down to the core and working your way up.”[4]

First Principles Thinking can and should apply to brief writing. To start, when trying to write a brief do not think of it as a brief. Think of it as you trying to persuade someone through a written document. Then build from there.

The next series of articles looks at the conventions holding you back. The articles apply First Principles Thinking to the rules limiting your writing. First up, the war on adjectives and adverbs.

Adjectives and Adverbs

If you needed to write a persuasive document, would you start by banning yourself from using whole categories of thousands of words? Of course not. You would, and should, use any words that help. Yet time and again we are told to cut adjectives and adverbs.

Misuses and Concerns

Critics of adjectives and adverbs have good reasons for concern.

The primary concern is the “show don’t tell” principle. Too often briefs assert a factual or legal conclusion without sufficient support. Red flags include sentences that use “clearly” or “obviously” to assert anything is true.[5] Other common violators are “conclusory,” “patently,” “cursory,” “baseless,” “unfounded,” “unsupported,” “frivolous,” “blatant,” and “vague.”[6] Instead of asserting a conclusion, briefs should provide the evidence and let the audience reach the conclusion itself.[7] So under the “show don’t tell” principle a writer replaces “Plaintiff has engaged in dilatory tactics” with “Plaintiff has missed three deadlines for responding to interrogatories.’”[8] And “the defendant brutally, viciously and repeatedly drove an enormous hunting knife into the victim’s chest and then callously left her to bleed to death, slowly and painfully” becomes “the defendant stabbed the victim five times in the chest with a hunting knife and then left her to die.”[9]

Another concern is redundancy. Sometimes briefs couple adjectives and adverbs with a fact. Here’s a simple example: “a gigantic one ton pumpkin won the blue ribbon.”[10] We all know how big pumpkins normally are, so “gigantic” is redundant with “one ton.” If the amount of giganticness is important, include the precise weight. If it is not, then “gigantic” makes the point.

Lastly, readers dislike adjectives and adverbs that mischaracterize the underlying facts by exaggerating or minimizing the truth. Did the defendant really “race home” when he went 56mph in a 55mph zone? Claiming a teacher “repeatedly attempted to sabotage and undermine the principal” goes too far when she only twice asked about budget cuts during faculty meetings. Likewise, stating a defendant got into a “brief scuffle with a bar patron” seems misleading when the defendant broke a bottle over the patron’s head and repeatedly kicked him, breaking six ribs and causing a head wound that needed twenty stiches. The problem here is a combination of the above points. Sometimes the underlying facts, standing alone, make the point. But other times, adjectives and adverbs are useful summaries as long as you choose the right words that do not overstate or understate what happened.[11]

These points are good well-reasoned advice. But none of these concerns warrant an editing manhunt. Just because adjectives and adverbs can be used poorly (as any word can be) does not mean that they always are or that they can never be used effectively.

Using Adjectives and Adverbs Effectively

“Many lawyers lament that legal writing squelches their creativity. It doesn’t need to.”[12] Adjectives and adverbs play critical roles in English; they can play those same critical roles in legal writing too. Take a look.

Example 1

A First Amendment challenge to a conviction for selling videos of animal cruelty did not stop then Solicitor General Elena Kagan from using adjectives and adverbs.

Law enforcement agents purchased several videos from respondent through the mail. The videos contain scenes of savage and bloody dog fights, as well as gruesome footage of pit bulls viciously attacking other animals. Agents searched respondent’s residence pursuant to a warrant and found other videos and dogfighting merchandise, as well as sales records establishing that respondent sold videos to recipients throughout the United States and in foreign countries.

. . .

The videos capture the entire grisly process of the animal’s being crushed to death, and they often show the woman continuing to crush the animal after it has died, until all that is left is a “bloody mass of fur.”[13]

Kagan converts the “show not tell” principle to “show and tell.” Her adjectives and adverbs characterize facts later described. But they are not redundant with the facts, nor are they a blatant appeal to emotion. The legal analysis pivots on a balancing test weighing the government interest against the speech’s expressive value. So these charged words embody the government’s interest: “a societal consensus that, although animals are often used for utilitarian purposes, they are living creatures that should be ‘treated in ways that do not cause them to experience excessive physical pain or suffering.’”[14] The characterizations don’t risk exaggerating the truth. Here, there was no dispute about whether the video content was vile; the dispute was about whether the constitution protected such content.

Example 2

In 2017 the Colorado Attorney General’s office won the Best Brief Award from the National Association of Attorneys General.[15] The winning brief was a Petition For a Writ of Certiorari to the United States Supreme Court. It too used adjectives and adverbs effectively.

Instead, the Tenth Circuit has adopted its own novel approach to the Guarantee Clause. If that approach stands, Colorado will be the first state in the country to be required to prove, to a federal judge’s satisfaction, that it is adequately republican.

. . .

If Guarantee Clause claims are now justiciable, there is no shortage of creative lawyers and academics standing ready to embroil states and federal courts in an endless stream of litigation on questions that, before now, would have been resolved through the political process.

. . .

By drastically shrinking the Raines rule and making it merely an exception to Coleman—rather than vice versa—the Tenth Circuit created a second split, this time with two other federal circuits.

. . .

Whether state legislators are permitted to lure federal courts into disputes like this one is an important question, as the Court recently recognized in Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314. As important as that case is, however, the implications here are even more significant.

The Tenth Circuit based its jurisdiction on the alleged injuries of just three of Colorado’s 100 legislators. This is a significant step beyond the situation the Court faces in Arizona State Legislature, where the entire legislature, acting as an institution with one voice, filed a suit to protect its power to draw election districts.

Whatever the outcome in that case, decisive action by this Court will still be needed. Here, the Tenth Circuit extended legislative standing far beyond the facts of Arizona State Legislature, allowing a tiny minority of the Colorado General Assembly to sue the Governor, who is standing in as a surrogate for the voters who enacted TABOR.[16]

Then-Solicitor General Daniel Domenico, and his team, used adjectives and adverbs selectively and effectively. They often appear in topic or concluding sentences. Notably, far from altering the truth, here they often increase a description’s accuracy: not just shrinking but drastically shrinking, not just a legislature’s act but the entire legislature’s act, not just a minority but a tiny minority. Other times they are fair and shorter characterizations of the facts: “an unpredictable but likely large amount of litigation” becomes an “endless stream of litigation.”

Example 3

Ross Guberman found several briefs using adjectives and adverbs effectively:

Indeed, [Calvin Klein International] was delighted to enjoy the business of Wal-Mart, the biggest discounter of them al.

Sunbeam intentionally played fast and loose with its accounting numbers to hoodwink Wall Street.[17]


When people tell you to strip all the adjectives and adverbs from your brief, what they are really saying is they do not trust your judgment to use adjectives and adverbs effectively. Prove them wrong.

Adverbs and adjectives are where great advocacy lives.

[1] See George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 3-7 (Person Education Inc. 2004) (use tools not rules). See also id.at 149-55 (chapter titled “‘Write the Way You Speak’ and Other Bad Pieces of Advice”).

[2] See James Clear, “First Principles: Elon Musk on the Power of Thinking For Yourself,” https://jamesclear.com/first-principles (last visited February 17, 2018).

[3] See Mayo Oshin, “Elon Musks’ ‘3-Step’ First Principles Thinking: How to Think and Solve Difficult Problems Like a Genius,” The Medium, August 30, 2017, https://medium.com/the-mission/elon-musks-3-step-first-principles-thinking-how-to-think-and-solve-difficult-problems-like-a-ba1e73a9f6c0.

[4] Matthew DeBord, “The secret to how Tesla gets its cars to look absolutely fantastic,” Business Insider, December 29, 2017, http://www.businessinsider.com/how-tesla-designs-cars-to-look-so-good-2017-11/#it-was-holzhausen-not-musk-who-was-the-budding-superstar-back-in-the-late-2000s-1.

[5] See Charles Bird & Webster Kinnaird, “Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court,” 4 J. App. Prac. & Process 141, 153 (2002) (“Readers notice and are bothered by . . . use of adverbs such as ‘clearly’ and ‘obviously’ in place of logic or authority.”); Roger J. Miner, “Twenty-Five ‘Dos’ for Appellate Brief Writers,” 3 Scribes J. of Legal Writing 19, 21 (1992) (“Eliminate adverbs such as clearly and obviously. If things are so clear or obvious, why do we still have a legal dispute on our hands?”).

[6] “Let nouns and verbs make your argument. Clearly, patently, obviously, literally, and egregiously make your points seem muddled, uncertain, unclear, nervous, and defensive.” Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[7] See Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 57-67 (Oxford University Press 2d ed. 2014).

[8] Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[9] Daniel Klau, Appealingly Brief: The Little Book of Big Appellate Tips (Or How to Write Persuasive Briefs and Excel at Oral Argument) 41-42 (2015).

[10] See AnneClaire Stapleton, “What it takes to grow a massive prize-winning pumpkin,” CNN, October 7, 2013, http://www.cnn.com/2013/10/07/living/massive-pumpkin-tricks/index.html.

[11] For example, replace “Plaintiff makes numerous amorphous and conclusory arguments” with “Although Plaintiff insists that X, Y is the law.” Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[12] Guberman, supra n.7 at 191.

[13] Brief for the United States at 4; 17-18, United States v. Stevens, 559 U.S. 460 (2010) (internal record citations omitted) (underlining added). This example is courtesy of Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/pdf/elena-kagan.pdf.

[14] Id. at 22 (quoting Congressional report).

[15] Erin Lamb, “Colorado Attorney General Cynthia H. Coffman and Solicitor General Frederick Yarger Accept 2015 “Best Brief Award” From the National Association of Attorneys General,” June 18, 2015, https://coag.gov/press-room/press-releases/06-18-15.

[16] Petition For A Writ of Certiorari at 3; 20-21; 29; 31-32 , Hickenlooper v. Kerr, 135 S.Ct. 2927 (2015) (record citations omitted) (underlining added).

[17] Guberman, supra n.7 at 191-99.


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.

A New Approach to Writing Facts, Part II

The first half of this article explained how to create stories. It drew analogies to filmmaking and described four criteria from Stephen Armstrong and Timothy Terrell. Those criteria are where does a story start, where does it end, from whose perspective is the story told, and which details are included and where.[1]

Let’s apply this approach to fact sections.

Example 1: A Criminal Appeal

Compare these two excerpts from a criminal appeal’s fact sections.

Version 1:

Around 11:00 p.m., Sergeant Smith, Officer Jones, and Officer Richardson, members of the Auto Larceny Unit with over twenty years of combined experience, patrolled in an unmarked car near Main Street and Tenth Avenue. These uniformed officers observed a white Subaru with a Wyoming license plate double-parked in front of a housing project in a high crime area. When Smith saw the Wyoming license plate, he ran a computer check for possible car theft because Wyoming had a recent streak of fraudulent car registrations.

As the officers waited for the results, defendant, wearing a camouflage jacket, left the car, crossed Tenth Avenue, and entered a gas station. He stood there, looking up and down the street, but did not buy anything or peruse the store. Then two other passengers left the car and entered a nearby housing project. A few minutes later they came back with a brown paper bag and re-entered the car. Then the defendant crossed the street and got back into the car. They pulled away, and made a U-turn over a double yellow line.[2]

Version 2:

Michael Doe left Jackson Hole to visit his ill cousin in Denver. He had no car so he got a ride from his cousin Christopher, and his cousin’s friend, James. They left Jackson Hole around 6:00 a.m. The rental car, a Subaru, had three rows of seats. Christopher drove and James was the front seat passenger. Michael sat behind Christopher. No one sat in the third row seat closest to the trunk.

When they arrived in Denver that night, they stopped by Christopher’s aunt’s home. They double-parked across from a gas station. After the long trip, Michael got out to stretch his legs. He crossed the street to a gas station. Christopher and James got out to visit the aunt. After a few minutes, everyone got back inside the car. They pulled away en route to Michael’s cousin. When Christopher noticed flashing lights in his rearview mirror he pulled over. Three officers approached the car.[3]


Even if this was the only section you read from each brief, you would probably determine the case involves a Fourth Amendment issue surrounding a car stop, and the first version belongs to the prosecution while the second version comes from the defense. Note the varying strategies.

The prosecution’s story starts minutes before the car stop. It begins from the combined officers’ perspective. The reader learns what they know and nothing else. This perspective aligns with the prosecution’s viewpoint on the Fourth Amendment, which usually centers on reasonableness; officers do not need to be perfect or all-knowing, they just have to act reasonably. The details chosen support the position. You learn a lot about the officers’ background. To build credibility, you learn their names, their unit, and some of their experience. The story shifts to the car occupants’ perspective to describe their relevant behavior. The details build suspicion. You know very little about them, but a lot about the situation. This type of car is often stolen and it is in a high crime neighborhood. The defendant’s behavior at the gas station makes him appear to be a lookout. And the ending is critical. The brown paper bag acts like a new character. At the end of the story the reader wants to know what is in the bag. Drugs? A gun? Putting aside the law, the facts almost burden the defendant to provide an explanation.

Contrast the defense story. It starts hours earlier from the occupants’ perspective to show how normal their behavior is. You learn the names of everyone in the car and their relationship to one another. Michael, the defendant, has a good motive to be in the car (visiting a sick relative) and is doing something both legal and normal by getting a ride from his cousin. The details about who sat where foreshadows an issue about contraband later located in the car and who it belonged to. The story ends with the police pulling the car over. Interjecting the officers at the end accomplishes a few goals. Primarily, the reader is left wondering why the officers pulled over the car. Again, regardless of the legal burden, the reader wants an explanation for the officers’ actions. You never learn the names or backgrounds of the officers because to the defense they do not matter.

Example 2: A Supreme Court Brief

Here’s an example from a brief by then-attorney John Roberts. The question before the U.S. Supreme Court was whether the EPA could override Alaska’s permitting decision under the Clean Air Act (CAA).[4] The fact section starts with this:

Statutory and Regulatory Background. The CAA establishes “a comprehensive national program that ma[kes] the States and the Federal Government partners in the struggle against air pollution.” General Motors Corp. v. United States, 496 U.S. 530, 532 (1990). At the same time, the CAA recognizes that “air pollution prevention and air pollution control at its source is the primary responsibility of States and local governments.” 42 U.S.C. §7401(a)(3) (emphasis added); see also id. § 7407(a) (“Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State”) (emphasis added). Thus, while the CAA assigns the EPA the responsibility for establishing national ambient air quality standards (“NAAQS”) for certain pollutants, see id. § 7409, the Act assigns the States the responsibility for implementing them. See id. §§ 7407(a), 7410(a).[5]

The opening begins with the regulatory scheme—not with Alaska, not with the federal government, not with a description of air pollutants, and not with the mining company this case affected. This choice frames the issue as Congress wanting states to control air pollutants. It uses case law and the Act’s language to emphasize a joint-scheme with states leading the way. That is a strategic choice to have the reader understand this viewpoint upfront and ideally view the later facts through this lens.

Later the fact section reads:

For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creekbeds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creekbeds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek.

. . .

Operating 365 days a year, 24 hours a day, the Red Dog Mine is the largest private employer in the Northwest Arctic Borough, an area roughly the size of the State of Indiana with a population of about 7,000. The vast majority of the area’s residents are Inupiat Eskimos whose ancestors have inhabited the region for thousands of years. The region offers only limited year-round employment opportunities, particularly in the private sector; in the two years preceding Alaska’s permit decision, the borough’s unemployment rate was the highest in the State.[6]

No one could claim the name of a mine, a dog in an airplane, the demographics of a region, or any of these facts are necessary to interpret the Clean Air Act’s text. Although unnecessary, they are relevant. “Roberts is litigating a classic federalism fight between the states and the federal government. And who knows how a mine fits into the community better than the local and state officials close to the ground?”[7] By using facts to show how unique the area is and how invested local peoples and local government are in the region, it shows a need and a reason why state government is better suited than the federal government to control permitting.

Example 3: A Supreme Court Decision

Look at Justice Jackson’s opinion in United States v. Morissette. The issue was whether a defendant could knowingly convert government property without any criminal intent. After the introductory paragraph, here is the opening:

On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read ‘Danger—Keep Out—Bombing Range.’ Nevertheless, the range was known as good deer country and was extensively hunted.

Spent bomb casings were cleared from the targets and thrown into piles ‘so that they will be out of the way.’ They were not sacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.

Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.

The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he ‘did unlawfully, wilfully and knowingly steal and convert’ property of the United States of the value of $84, in violation of 18 U.S.C. s 641, 18 U.S.C.A. s 641, which provides that ‘whoever embezzles, steals, purloins, or knowingly converts’ government property is punishable by fine and imprisonment. Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.[8]

The fact section sets Morissette up for a win.

It begins with a god’s-eye-view of a place, the bombing range. [9] Then it describes things in that place, spent shell casings. Only then is Morissette introduced. We learn he goes to the range for an innocuous purpose, hunting. True, there are signs saying keep out (a bad fact for Morissette), but we already learned the signs are not enforced. All of his alleged criminal acts are summed up in three sentences: he wanted to make some money, he took the casings, and he sold them for $84. Then a paragraph about Morissette’s positive character. And then Morissette’s approach to his actions; he did everything in broad daylight, never thought anything was wrong, never hid it, and cooperated with authorities.

Rather than a chronology, this story is about where, who, and why. It frames Morissette as an upright man with blameless motives.[10] By the end the reader is sympathetic to Morissette, and even wondering why this man was ever arrested. And that is precisely where Justice Jackson wants you before starting his legal analysis.[11]

[1] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 300 (Practicing Law Institute 3d ed. 2009).

[2] This is a variation of the fact section in the Brief for Defendant-Appellant at 4-15, People v. Bryant, 562/05 (N.Y. App. Div. 2010).

[3] This is a variation of the fact section in the Brief for Respondent at 4-14, People v. Bryant, 562/05 (N.Y. App. Div. 2010).

[4] Brief for Petitioner, Alaska v. Environmental Protection Agency at i, No. 02-658 (U.S.).

[5] Id. at 5.

[6] Id. at 7-9 (citations omitted). This example is courtesy of Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 59 (Oxford University Press 2d ed. 2014).

[7] Ross Guberman, “Five Ways to Write Like John Roberts,” https://www.legalwritingpro.com/pdf/john-roberts.pdf.

[8] Morissette v. United States, 342 U.S. 246, 247–50 (1952). This example courtesy of Armstrong & Terrell, supra n. 1 at 117-18, 300.

[9] Armstrong & Terrell, supra n. 1 at 300

[10] See id. at 117.

[11] For more examples of fact sections and storytelling see Armstrong & Terrell, supra n. 1 at 113-118, 296-305.


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.

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.


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]


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.


“[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).


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]



“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.,


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

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



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.

Top Ten Law Practice Management Programs and Homestudies

The year is almost over, and with it the compliance period is ending for many Colorado attorneys. As we draw to a close with our review of the Top Ten Programs and Homestudies in several substantive practice areas, we wanted to include something important to practitioners across all fields of law—law practice management and legal writing. Colorado CLE offers law practice management and legal writing programs throughout the year, including classes on how to use Adobe Acrobat in a law practice, analyzing financial statements, conducting online research, and much more. Read on for the Top Ten Law Practice Management Programs and Homestudies.

10. Essential Legal Research Methods and Resources for Colorado Lawyers. Legal research in a university setting often involves analyzing a long-standing legal issue with well-established outcomes. Research in practice, however, can focus on cutting edge and messy legal issues where the law is only starting to emerge, with conflicting and ethical issues. This program provides advanced techniques for finding and analyzing primary and secondary law sources, free legal research, and more. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Drafting Complex Legal Documents with Microsoft Word. This program, taught by nationally renowned speaker Barron Henley, features tips and tricks to create, share, automate, and manage electronic documents. Learn about Word’s style features, simple automation techniques, file organization, keeping documents secure while allowing comments, and more. Seven general credits, including one ethics credit; available as DVD homestudy and Video OnDemand.

8. Legal Writing in the Smartphone Age. Gone are the long, flowing emails messages with pretty graphics and lots of attachments. Today’s communication — almost 100% electronic — is immediate, brief, clear, and powerful. Designed to boost your instant or near-instant message-drafting skills, this practical half-day program will teach you how to draft clearer and more effective emails, court documents, and memoranda. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Accounting and How to Understand and Analyze Financial Statements. There are financial issues involved with every type of law practice and it is your duty to possess the skills and knowledge necessary to handle those issues effectively.  This detailed program will provide you with the financial literacy required to protect yourself and your clients through your understanding of accounting concepts, terminology, and financial statements. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. iPad for Legal Professionals — Basics and Advanced. These two half-day programs provide useful tips for using iPads in a law practice. The first half covers “must-have” apps that should be on every lawyer’s iPad and tackle important security settings and how-to’s on loading documents and printing. The second half answers more advanced questions, like “How can you do legal research on the iPad? How do you give a presentation on the iPad? Do you need to buy a keyboard or stylus?” Four general credits each; available as DVD homestudy (Basics/Advanced) or Video OnDemand (Basics/Advanced).

5. Better Motion Practice — How to Argue, Present, and Write Motions More Effectively. This program is designed for lawyers who want to sharpen their skills. It provides a practical overview of various kinds of motions likely encountered in pre-trial civil practice. Specific techniques, skills, and methods for persuading the court and decision-makers are covered. The program will generally reference state and federal rules of procedure and evidence. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. The Art of Communication. Being a lawyer means being an effective communicator. Yet, in an increasingly electronic age, what is effective communication and how do we measure our own effectiveness in keeping our clients informed as to complex issues, guiding them in making difficult decisions, and speaking on their behalf to others? This half-day interactive seminar is designed to explore in depth the art of strategic communication by introducing participants to theories and specific practice tips concerning improved written and electronic communications. Four general credits; available as MP3 audio download and Video OnDemand.

3. How to Become Your Own Cybersleuth: Conducting Effective Internet Investigative and Background Research. In this fast-paced investigative research seminar, you will learn to create more effective Internet searches to locate information crucial to your matters, which you might otherwise miss. We will reveal hidden Google search features and shortcuts to speed up your research. You will also learn to use free public record sites and sites with free “publicly available” information (including social media sites), for discovery, trial preparation, background checks, and for locating missing persons. Discover the advantages (and limitations) of data broker databases. Each homestudy comes with a copy of the book, The Cybersleuth’s Guide to the InternetSeven general credits; available as live Video Replay in Denver on January 5, 2016, or as CD homestudy.

2. Hanging Your Shingle 2015: Hardware. Software. Anywhere You Go. In this intensive two and a half day course, you will get the tools, information and building blocks you need to confidently open the doors to your new firm. If you believe you can’t afford to venture out on your own, is it time to ask yourself if you can afford not to? Eighteen general credits, including 7.9 ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

1. Preventing Legal Malpractice. Each year, CLE presents two Preventing Legal Malpractice programs: one directed at transactional attorneys, one directed at litigation attorneys. In addition to the printed materials, each attendee receives a copy of CLE’s book, Lawyers’ Professional Liability in Colorado. For 2016, there will be Preventing Legal Malpractice programs in Denver on March 11 and in Colorado Springs on March 17. Registration is not yet open, but save the dateFour general credits, including four ethics credits. NOTE: This program is repeated annually. Click here for the 2015 programs (transactional/litigation) and click here for the 2014 programs (transactional/litigation).