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For many lawyers the word “appeal” means one thing — legal writing at its thorniest. The prospect of appellate work, with its emphasis on brief writing, can send even the toughest street lawyer into a cold sweat. And if briefs are daunting for lawyers to write, consider the judges who read them. The Georgia Court of Appeals had 2,596 direct appeals last term. With at least two and possibly three briefs per appeal, that’s between 5,192 and 7,788 briefs. Divided among the 10 judges, that’s 519 to 778 briefs per judge. And that doesn’t include the 837 discretionary and interlocutory appeals the court handled. For your brief to capture the court’s interest, it must be good. But don’t drop your briefcase and run. Lawyers who have the time, and who are willing to face old demons, can improve their writing skills and author their own appeals. This courageous approach saves the cost of having your appellate work go to another lawyer or of hiring outside help. It allows complete control over the direction of the argument. It inspires client confidence. There is also a philosophical component: if you’ve given up too easily on writing, you’ve backed away from a vital part of the lawyer’s craft. FROM TWISTED ROOTS As law students, most of us were taught that legal writing is a series of steps and stages, a mechanical process — perhaps a punishment — that requires the construction and assembly of constituent parts. We were instructed to use “IRAC,” a system of identifying and converting into an appellate brief the issue, rule, application and conclusion. Sentence by sentence. Paragraph by painful paragraph. The product was utilitarian; the process authoritarian. Students who shot to the top of the class in first-year torts, contracts and constitutional law, often faltered in the legal writing course. The skill some had felt most confident about (I wrote the personal essay that got me into this place, didn’t I?) — became an Achilles heel. The first-year legal writing course can be a “strong, negative, lasting experience,” says James R. Elkins, a professor of law at West Virginia University College of Law. Elkins, who has authored many articles about the problems of current legal writing curricula, calls the IRAC method of brief writing “the industrial model of lawyering.” “The idea is that you’re supposed to produce a legal brief without thinking. You just say ‘IRAC’ to yourself and it’s a kind of magic,” he says. It’s a paint-by-numbers process where brief writing and lawyering are not things to be thought about, to be troubled over, or to be found perplexing, he says. “It’s like mathematics.” The IRAC method teaches that to be a good lawyer you’ve got to have a “buttoned down, program-oriented, follow the rules” mindset. “This runs counter to everything that is poetic and expansive in a person’s education,” he says. For some students legal writing is “a hoop.” For others it signals that if you do not conform, learn the program, solve the equation, build the legal brief the way you are taught, then you are not going to be a good, effective and powerful lawyer, he says. Everybody knows that lawyers write to have power, to succeed and to make sure their client prevails. “When you learn that the skill at the very heart of your craft is to be done by formula, then where are you to turn?” Elkins asks. This leaves some lawyers angry and others mystified, he says. Anne Rector, director of the legal writing program at Emory Law School, agrees that lawyers may leave school uncomfortable with writing and lacking the skills they need. “There are many things that one isn’t ready to do when one gets out of law school,” Rector says. At the same time, “when you get out the door you need to be a fairly accomplished writer,” she says. Rector cites several problems that face legal writing departments. Many legal writing professors are interested in teaching classes geared to professional practice, she says. However, some schools have only an introductory legal writing course. At those schools that do offer advanced courses, the students often do not realize their value, she says. Compounding the problem is that students don’t have the real-world litigation experience to give character to their brief writing, so the information is difficult to impart. “It’s a conundrum,” Rector says. Elkins cites the lack of status accorded legal writing professors as an underlying problem. These professors are tremendously defensive, he says, because “they are operating under enormous constraints, are inundated with students, are asked to teach without tenure, and are viewed as second-class citizens.” The troubles facing legal writing programs leave the often-repeated promise that the law student will graduate “thinking and writing like a lawyer” only half-fulfilled. Or maybe it has been fulfilled too well. “Many lawyers in general are not good writers,” says Donald P. Jacobs, an appellate lawyer and former adjunct professor of legal writing at Rutgers Law School. BEYOND LAW SCHOOL WRITING Fortunately, those lawyers dispirited by the stilted, dry and lifeless writing taught at their law schools can forget most of what they’ve learned. “I think judges are like most human beings — they’re interested in reading something that’s interesting on its own,” says Jacobs, who this year co-wrote the brief in Beck v. Propis, a civil RICO action before the United States Supreme Court. The key is to captivate the audience and make it want to read on, and there is a way to do that, he says. The ability to identify the issues that will carry the day on appeal is the first step to writing a good brief, Jacobs says. He’s seen many briefs written by general practitioners that raise up to 20 points on appeal. “That’s a very ineffective way of presenting an appeal.” Most appeals can be boiled down to a relative few issues, he says. Throughout the brief, Jacobs says, the lawyer wants to create and develop themes, tell the reader why the facts are important, and tell the client’s story in an interesting way. This requires using subheads, short sentences and employing the law to your advantage. For example, he says, you want to begin the brief with a sentence that tells the reader what your case is about. You don’t want to say, “Plaintiff fell and was injured on October 1st 1999.” You do want to say, “This case presents an important issue concerning … .” Then, tell the reader what that issue is. Often, it comes down to tone. Legal writing needs to be formal, concise and persuasive, he says. Like Jacobs, when Elkins identifies the qualities of good brief writing he does not focus on the mechanical structure of the document. “Writing something that is interesting, thoughtful, literary, intriguing, will never be thrown out of court as inappropriate,” he says. “We want appellate arguments to be that.” GETTING HELP Resources are available for lawyers who want to improve their writing. These include books, articles, and the occasional CLE course. But, ultimately, becoming better writing begins with the awareness of why writing skills are valuable for lawyers. It’s important for lawyers to write because the way we have of testing wisdom is in writing, Elkins says. You can be slick, you can be fanciful in your personal appearance and in your oratory, but it’s hard to fake it as a writer, he says. One reason we read is to be exposed to intelligence: intelligence to make an argument, intelligence to provide basic structure, intelligence to challenge or provoke, intelligence to turn a phrase. Elkins does not think you need a teacher or a workshop to be a better writer. Most people who want to write realize that most writing is not taught, Elkins says. “Any writer will tell you they learned to write by writing.” You do need to say to yourself, “I am going to set out to think about myself as a writer,” he says. Elkins recommends Peter Elbow’s “Writing for Power,” Oxford University Press, 1998. The problem for lawyers in writing appellate briefs is paralleled by the decline in the art of writing judicial opinions, Elkins says. Decisions are written by committee, are harder to read, are less interesting and are boring. “Writing is always sort of falling apart on us,” he says.

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