Let’s talk about briefs, baby/Let’s talk about Rule 12(b)!
Once again, there’s a reason lawyer don’t write song lyrics. Mainly because we’re incapable of processing actual humor past a certain point in our career and end up telling jokes that include Latin phrases and case names. Jesus, we’re a boring lot of assholes when you get right down to it, aren’t we? Mostly because of the shit we have to put up with on a day-to-day basis, not just the clients but also the drudgery of the work that we do. I mean, Law & Order is great, but it sure as hell isn’t an accurate depiction of the life of a lawyer, criminal or civil.
I tell my clients, especially when they start climbing up my ass because they don’t know why they haven’t gotten THEIR DAY IN COURT yet (God do I hate that fucking phrase) that about 90% of what actually goes on in the practice of law is behind the scenes and known only to the client when they receive the invoice for the work performed. A client will never understand researching the merits of a claim, drafting a pleading, or briefing a matter.
Speaking of briefs, can you guess what we’re going to talk about today? Yeah, that’s right, we’re about to start talking about the importance of briefing accurately and completely, because recent events have convinced me that most lawyers out there are complete fucking incompetents who view brief-writing as a form of fingerpainting. It isn’t, dipshit. Entire cases can be won or lost based on the strength of your brief.
And, in true lawyer fashion, I’m gonna talk about something called a”brief” and spend a long time doing it.
I’ll admit, there’s an ulterior motive for today’s post. Recently I’ve been trolling along Twitter and Tumblr (Did you know there’s a Tumblr account for Lawyers & Liquor in addition to my Twitter account? Granted, I have damn near no control over what’s posted on it, having outsourced it to someone that uses the words “fam” and “kek,” as I’ve found my unrelenting rage just isn’t a match for the folks on Tumblr. However, it exists and you can find it here ). In my travels I’ve come to realize that a lot of fucking law students are complaining about having to prepare and turn in their 1L briefs. For example:
— Amanda Ahner (@amandaahner) April 3, 2017
Never thought I would ever be saying I need more than the 18 page limit to write the trial brief… #lawschool
— Melissa (@astoldbymeli) March 24, 2017
— Hugh Dowell (@hpdowell) March 27, 2017
Oh those poor fucking babies. Here, let me take a moment and play “My Heart Pumps Purple Piss For You” on the world’s tiniest harpsichord. Researching and writing briefs is really the fucking job. If it was up to me, you’d have to write a brief every fucking semester, on all these different matters, with none of this “Here’s the packet of the cases you can refer to” bullshit they give to you. No, I want this shit realistic. “Here’s a vague issue, now research it, flesh it out, and submit it prior to the filing deadline. By the way, the Court, in its infinite wisdom, has determined the briefing deadline is 10 days from now. NOW GO, ASSHOLES!”
Look, I get it. I do. Law school throws a lot at you, and you’ve never had to write like this before. Still, this is the fucking job. It’s not all “DID YOU ORDER THE CODE RED?” and shit like that. It’s a ton of fucking writing, and it amazes me how many lawyers I run into that just can’t fucking string two sentences together in a coherent manner. So, because shitstains abound and fuckwits are plentiful, here are Boozy’s Five Tips for Brief Writing:
Don’t Be A Half-Cocked Halfwit.
The key to writing a good brief is to know what the fuck you’re writing about. Now, some guys, like yours truly, can write briefs on certain subjects with only a cursory search of the law, because we brief that issue so goddamn often that we know it backwards and forwards. That’s actually a cool thing, and it makes you look impressive as hell when you can rattle off like eight case names that support your position without cracking a single goddamn book. However, this talent seems restricted to criminal attorneys, who argue the same fucking issues in every fucking brief and guys like me who have or had a lot of cases in one obscure fucking area of law that nobody else really tries to work with anymore.
For the rest of you peons, you need to learn how to research shit. That means logging your ass into Westlaw or Lexis, or if you have neither of those, into one of the many free resources (or chugging it down to the local law library with free Westlaw access in your spavined old Honda Accord) to research the case law surrounding the issue you’re briefing. Oh, yeah, and stop going with like the top three reported cases that are tangentially on the fucking subject. Learn the goddamn subject. You want to go into the top reported decision, then you want to look up the citations in that decision. You want to look at recent unreported decisions and dig through the citations in that decision as well. You want to trace the law on this subject, that’s being cited today, back at least fifty fucking years.
Why? Because cases are fucking nuanced, man. That one fact that’s different in your case could be the fact the whole goddamn case in the reported decision turned on. Plus, you need to know this shit for future briefing.
Research Your Opponent’s Position, Too.
Oh, yeah, you’re also going to want to do the same fucking thing regarding your opponent’s position on the matter. Why? Well, because you may get a reply brief, you may get a response to reply, or you may be told to go pound sand if you request those things from the court. You need to start working on the assumption that there will be two briefs: Your brief in support, their brief in opposition. Full stop. That means there’s a lot of shit you need to be able to cover, including the ability to rebut an opposing argument that could sink your whole fucking case, without assuming it (unless you know they’re going to raise it).
The only way to do that shit, especially if you have the first brief in the matter or the briefs are being submitted simultaneously, is to anticipate the argument. The only way to anticipate the argument is to know what fucking argument they could make. Plus, it’s a good fucking way to learn the subject matter for future briefs.
Or you’re welcome to not do this, look only for the cases that support your position, and then stand around with your dick in your hand when your opposing counsel includes it prominently in their brief. Choice is yours, dipshit.
Write For The Clerk, Not The Judge.
This is the first fucking rule. You see that dipshit on Twitter referenced above, saying shit like “writing for a law professor?” That’s cool, they know who their audience is, and who will likely be grading their assignment. How? Because the professor is the one who issued the assignment and the professor is the one issuing the grades.
Courts don’t fucking work like that.
Every judge has a law clerk. The sole job of the law clerk is to say “Here’s a summary of the briefs, here’s a summary of the law, here’s support for both positions.” This is the guy that’s really reading the shit you spew on paper most of the time. Fun story, back before I was a litigator I applied for a position as a law clerk, and during a very good interview was told “Your job will be that I’ll tell you how I want to rule, and you find me the law that lets me do that.”
Clerks are your audience, guys, not the judge. Now, most judges will rub off on their clerks, and will have an impression of how they want to rule, but really you’re arguing the case to a law clerk. Of course, you can’t assume the judge will never read the brief, because on a tight issue the judge will, and some judges just don’t value their downtime so they enjoy reading the briefs submitted to them, but most of the time the judge’s impression of your brief is going to come from whatever the clerk tells them, so you write for the clerk. How?
Keep it simple, stupid. No flowery language, no showing off how smart you are, no bullshit. These are the facts, this is the issue, this is the law, this is why you should rule for me, this is why their argument is complete and utter horseshit. The clerk has a lot of shit to do, and doesn’t have time to deal with you spending 25 pages waxing poetic about a fucking landlord/tenant case. Give’em the argument, and give it to them in a way that can be easily boiled the fuck down.
Find Your Voice and Use It.
You aren’t Clarence-fucking-Darrow. There’s one Clarence Darrow, he was awesome, and he’s now dead. Don’t try to talk like him.
Likewise, you aren’t Scalia. There was one Scalia, he was a barb-slinging cowboy in opinions, and he’s now dead. Don’t try to talk like him.
Further, don’t try to sound like some erudite attorney filled with knowledge. This shit is the worst thing you can ever read, filled with ten dollar words and phrases coached in legalese and shit. No, you want to write the brief in a manner that sounds like how you would argue the case, because chances are, at the trial level, you will at some point argue the case. Accordingly, if you don’t use words like “erudite” or “supine” in your argument voice, don’t use them in your writing voice.
Note: I regularly use the word “supine.” I like it. It has a nice ring to it. I have had judges tell me they had to look it up, however, so I try to avoid it.
Let me give you an example. Which sounds better:
“The Plaintiffs, Mr. X and Mrs. X, suffered damages to the malfeasance or, in the alternative, misfeasance of Y Co., as Y Co. failed in providing proper oversight to employees directly under its control and therefore liability flows to Y Co. under the doctrine of respondeat superior.”
“The total failure of Y Co. to properly supervise its employees, either knowingly or in a complete disregard of its legal duty to do so, has irreparably harmed Mr. and Mrs. X.”
Get the point? Stop writing like an asshole.
Proof Your Shit.
I read so much shit about lawyers who are briefing right as the deadline looms, submitting shit in the moments before midnight and then, I assume, doing a victory lap around the fucking office to celebrate being a stupid piece of shit. Don’t be that guy.
As Hemingway once said, “The first draft of anything is shit.” Stop thinking you’re the exception to the fucking rule. You aren’t. Your first draft is bad, and you should feel bad. You need to go through several fucking iterations of anything you write to get it to something manageable.
So write the first draft…then print it and revise for typos. Correct the typos, then print it again and revise for language and grammar. Correct that shit, then print it again and review for flow and wording. Then correct that shit. See where you’re repeating words and tighten the shit up. See where you’re being unnecessarily repetitious and condense. Do that shit every goddamn time…and here’s the key:
Leave yourself time between every read. If you can, give yourself a day without looking at the final version, then pick it up and read it again to see if you still like what you wrote. Don’t just do all of your revisions in the same day, because your ass needs fresh eyes on this shit or you’ll never touch any of the language. Why? Because we are a proud people, and prone to thinking our first draft may be shit, but it’s golden shit.
But, I hear you say, there are time constraints! Yes, dipshit, there are, and that’s where you have to be a disciplined little pansy, isn’t it? Your final version of the brief, after all of that shit above, should be ready to file at least one day in advance of the filing deadline. I do two days in advance, because I like the extra time. That may mean working late and missing some of the excitement on this week’s episode of The Voice or whatever bullshit televised talent show you love. Suck it the fuck up.
Obviously, however, this can’t be done with emergency briefs. In that case, do the best you fucking can, and try to make at least one set of revisions. Which leads to the super-secret Tip Number 6:
SAVE ALL YOUR BRIEFS YOU DIPSHITS.
SAVE THAT SHIT. There’s a saying among writers that there are really only 7 stories in the world. Everything else is just a reinterpretation of the theme. The same is true in law: there’s rarely anything new under the sun, at least at the practice level most of us work at. Guys like Randazza and Ken White, who argue constitutional First Amendment issues, may have a different opinion, but for us day-to-day litigators, we’re going to argue variations on a theme in every case, not some new groundbreaking law.
Recently I became aware of a lawyer we’ll call “Three-Kids-In-A-Trenchcoat, Esq.” who was not in the practice of saving the word copies of his briefs, only the final PDF. This came to light as he was re-writing an entire fucking brief on a subject he’d briefed before. Imagine how much fucking time he would have saved if he could have copy and pasted some shit.
So save your fucking briefs, because eventually, when that emergency motion with a 72 hour response time lands on your desk, you’ll be able to steal portions from briefs you’ve done on the same or a related topic, rewrite them a little, spend some time making sure the law is good, and resubmitting the damn thing. We all do it, but whenever I hear of a lawyer who doesn’t save their final brief in a version that they can edit easily, I get worked up for just this purpose. Don’t reinvent the fucking wheel when you’ve got everything done but the fucking tire.
There’s a hell of a lot more to brief writing, and I’ll touch on it at some point in the near future, but I’m gearing up for another set of depositions this week and getting caught up from being in depositions all day yesterday, so that shit’ll have to wait for another time. If given the choice between talking to you assholes all day or billing some hours to a paying client, I’m going with the one that gets me paid.
Tomorrow we’ll spend a little time talking about how to know when it’s time to tell a client to GTFO of your life.