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Given all the jokes that link lawyers with briefs (e.g., “lawyers have the sexiest briefs,” etc.), one would think that writing a brief is a popular activity among lawyers. In my experience, the opposite is true. Many excellent lawyers — including some great litigators — dread the prospect of having to write a brief. For that reason, in firms like mine, those of us who actually enjoy writing briefs tend to develop reputations as people who can and will take on a task that others would love to pass off. One consequence of this is that our partners think they owe us lots of favors. But the best part of this phenomenon is that we get to write one heck of a lot of briefs. As one who has written hundreds of briefs, I have developed a number of strategies that allow me to prepare briefs that get written more quickly and less expensively, and that (I’ve been told) are (at least sometimes) still effective. As you will see, many of these strategies are — to put it mildly — unorthodox. Some seem downright nutty. You be the judge. 1. Start in the middle (or even at the end). It’s amazing how many lawyers, who essentially write for a living, have writer’s block. Often, they can’t get started because they simply don’t know how to write the introduction. Forget the introduction! We live in technologically wonderful times, where the miracles of word processing allow us to start in the middle and work forward and backward — even simultaneously. What that means is that you can begin your brief by writing the section that is easiest to write. It need not be a major point; it can be a secondary argument that requires just a few paragraphs and a case citation or two. If your writer’s block is particularly acute, and you need to get something — anything! — down on paper, write the conclusion to your brief first. If the thought of even writing the conclusion leaves you helpless, I’ll do it for you: “For all of the foregoing reasons, plaintiff’s [or defendant's] motion should be granted [or denied];” “For all of the foregoing reasons, the district court’s judgment should be affirmed [or reversed].” Get the picture? Write that one short section, and you may find your writer’s block fading away because, after all, you have already started your brief. 2. Start writing immediately, as though the brief were due in three days. But you say you haven’t even researched all your arguments? No matter. Write the sections today that can be written today. If the research you need is simply a few cases to support a legal proposition that you know to be true, just stick in “[CITE CASES]” and find the cases later. What’s the rush? First of all, it may help you get past any residual writer’s block. But the real reason is to give you time to put the brief aside and pick it up several days later. You will invariably find that if you look back on your draft a few days after you write it, you can be your own best critic, and your next draft will be materially better. 3. Know nothing about your subject matter. Conventional wisdom tells us that, when we write a brief, we should assume that the reader knows nothing about the case, or even its general subject matter. I agree, but I have also found that the best way to hone that skill is to write briefs where I know nothing about the case at the outset either. Sounds crazy, doesn’t it? As noted above, I am often asked to draft briefs for cases handled by my partners in which I have had no prior involvement. I used to think this was impossible. But then I came to realize that if we are going to give a judge just enough information to decide the matter at hand, it should be possible for the brief writer to also learn just enough about the case to write the brief. This obviously has its limits. The lawyers who are handling the case should, of course, review your draft critically to make sure that your brief makes sense and to ensure that you are not giving away the store on some unrelated issue in the course of briefing a motion. And, yes, your draft may suggest to them the need to cite additional facts that they didn’t tell you about. But once you do this a few times, you may actually find that it is harder to write a brief in a case that you have lived with for months or years, since you cannot help but be burdened with facts and arguments that are extraneous to the matter at hand. And you may find that the skills you develop in coming into a case “cold” to write a brief will help you selectively extract from the massive record in your own case the limited material you need to write a particular brief. 4. Write all the footnotes you want. That is, write them in your first draft. As one who is still in recovery from a long-term addiction to footnotes, I can tell you that it is a hard habit to kick. But kick it you should. Virtually every article about briefs written by judges insists that footnotes should be minimized or omitted entirely. But go ahead and put footnotes in your first draft. Then, go through them carefully. If they say something important, you ought to be able to work them into the text of the brief. If you can’t, they’re probably not all that important. And if they are not important enough to make the grade into the text, bite the bullet and get rid of them. But don’t hesitate to load your first draft with footnotes if it will help get you past your writer’s block and get all of your ideas down on paper. 5. Don’t fixate on court of appeals decisions. In citing cases (and I am here talking about federal cases), there is a tendency to always — and only — cite cases from a federal court of appeals. But if you are writing a brief for a trial court, keep your eyes open for decisions by the very same trial judge, as well as decisions by other respected district judges in your district or even in your circuit. And whether you are litigating in a trial court or an appellate court, don’t forget that there is one court at the very top of the judicial food chain. To take my field (patent law) as an example, there is a strong tendency to cite only decisions by the federal circuit. However, the U.S. Supreme Court has been deciding patent cases for more than 200 years. You may find that in your field (as in patent law), while the statutes may have been rewritten many times, the broad legal principles tend to stay the same. If decisions by a court of appeals seem to be arrayed against you, a citation from the Supreme Court could save the day. 6. Avoid “middle-aged” citations. Everyone knows that recent cases are the best cases. But if you can’t find a case to cite from earlier than, say, the 1970s, consider going to the opposite extreme. An 1890 decision could allow you to make a statement such as, “It has been the law for at least a century that … “ 7. Use strong and colorful rhetoric. In your first draft, that is. Get the sarcasm and the ad hominem attacks out of your system. But then have someone you trust review the draft critically and delete or tone down the inappropriate rhetoric. On the other hand, you may find that sometimes language that you hesitated to use comes across to someone else as being totally appropriate — not to mention highly persuasive. 8. Focus on the “entr�e,” but don’t forget the “side dishes.” If you are writing a brief in support of a motion, remember that you will probably need a formal motion as well. Don’t dismiss this as a mere formality. In federal practice, a motion “shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Fed. R. Civ. P 7(b)(1). If you cannot clearly articulate the precise relief you are seeking, there is likely to be something wrong with your brief as well. Figure out exactly what you want the court to do, and ask for it with precision. Years ago, an adversary served on me a document that was characterized as a motion with supporting memorandum. It was actually just a memorandum and not a badly written one, but it never specified the exact relief that was being sought. Don’t leave it up to the court or even worse, your adversary, to figure out what it is you want. With summary judgment motions, most courts also require a separate statement of facts that are considered to be undisputed. Some local rules actually state that these facts will be deemed established if not properly contested. Don’t give this statement of facts short shrift with a small number of conclusory assertions. Break it down into bite-sized pieces to include facts that your adversary cannot responsibly dispute. 9. Don’t forget those “long lead” items. If the brief you are writing is in support of or in opposition to a motion, you may need affidavits, exhibits or the like to accompany your brief. It is a mistake to leave those items for the end, while you focus on perfecting your brief. Affidavits need to be signed by the affiants before a notary. If you start trying to track down your affiants on the day before your brief is due, you may discover that they are on vacation or otherwise unreachable or miles from the nearest notary. In federal courts, you can obviate the need for a notary by using the declaration procedure set forth in 28 U.S.C. �1746. Some courts will even accept declarations that are transmitted by facsimile, but you still need a living, breathing, knowledgeable declarant somewhere near a fax machine. If you are like me, and you don’t like playing “chicken” with deadlines, start thinking about declarations and other “long lead” items well before your deadline. If you just took a deposition and plan on citing to it, stay on top of the reporter and make sure the deposition is transcribed and sent to you as quickly as possible. If your papers will include multiple copies of numerous and voluminous exhibits and attachments, assemble them early, and get your staff started on photocopying immediately. 10. Annotate your brief to your declarations before you actually draft them. As just discussed, many briefs must be accompanied by declarations that provide the evidentiary support for the factual assertions made in the brief. I have often seen motion papers in which the brief barely mentions the declarations that accompany it. In my view, this is a mistake: It forces a busy judge to figure out how the declarations support the arguments in the brief, and may cause the judge to wonder whether any evidentiary support exists for a given factual assertion in a brief. For that reason, I believe it is most effective for a brief to make repeated and specific citations to the supporting declarations (and other evidentiary materials) whenever significant factual assertions are made. The judge may or may not jump back and forth between your brief and the declarations to make certain that the citations are legitimate, but even if she doesn’t, a heavily annotated brief exudes a level of confidence with regard to factual support that is simply not present in a brief that contains little or no annotation. You may wonder how you can be expected to cite to the declarations in your brief when the declarations don’t exist yet. That’s the best part of this system. You can write the statement of facts in your brief in exactly the manner you wish, and then use the draft of your brief as a road map for preparing the declarations. Here’s how it works. Assume that you’re in violation of Rule #3 (i.e., you now know something about the subject matter), such that you’ve now got a mass of facts floating around your brain. Let’s say there are two or three witnesses employed by your client who together have knowledge of all of the significant facts, perhaps with partial (but by no means total) overlap. As you write your brief, if you’re sure that the support will come from Smith, insert tentative citations such as “Smith Decl. �___.” If the point is important enough and two of your declarants can address it, insert “Smith Decl. �___; Jones Decl. �___;” but don’t let Smith and Jones say the same exact thing with the same words, since it will be assumed that the words are yours, not theirs. What if a given fact is something that cannot be proven through your existing stable of potential declarants or from any other evidence readily at hand? Here’s the easy part: Just write in your brief, “___________ Decl. �___.” But you better start figuring out a way to prove that fact, and do so now. If you can’t, you have a problem that no article on brief writing is going to help you solve. Proceeding in this manner allows you to recite the facts in your brief in exactly the manner you wish to present them to the court. But there is one additional benefit to this system: It provides you with a road map for preparing declarations that include just the facts you need to support your arguments, nothing more and nothing less. Simply take your draft brief and jot down all the facts that have to come from declarant Smith, put them into some logical sequence and add some qualifying background information and your first draft of the Smith declaration is done. Then do the same for Jones. Once you are done with the declarations, go back to your brief and insert the references to specific paragraphs. When your declarations have been drafted in this manner, it reduces the likelihood of your declarants making factual averments that are unnecessary to support your brief, but that can provide cross-examination fodder during a subsequent deposition or trial. It works pretty much the same way with exhibits that will typically be attached to the declarations. As you draft your brief, make reference to the exhibits that support your arguments. And don’t feel you have to use terse and uninformative references to exhibits, such as “Jones Decl. Exh. 3.” Give them a short identifier. This will help you make sure that you gather the correct exhibits when you put together the declarations. It will also alert the judge to the type of exhibit she will find when she takes a look at the evidentiary materials, for example, “1994 License Agreement, Jones Decl. Exh. 3.” By now you may be thinking, “But what about Rule #9? You just told us to get those declarations out for signature early to allow for last-minute glitches.” Quite true. But I also told you (way back in Rule #2) to start writing the brief immediately. If you do, and if you follow this Rule #10, you will also get your declarations drafted early. 11. Generate your table of contents as you are writing the various sections of your brief. Our normal inclination is to simply write the whole brief, and then later let the table of contents fall out from your headings and subheadings. But the table of contents can be extremely helpful in getting your arguments properly organized while you are writing them. For example, you may have drafted four arguments with main headings A, B, C and D. But when you look at the headings without the arguments — as they appear in a table of contents — you may realize that your arguments C and D should really be sub-arguments 1 and 2 under heading B. If you generate your table of contents as you are drafting, you may spot these problems earlier — when things are easier to fix. 12. Get an outsider to beat up your draft. Remember when I said (back in Rule #2) that you can be your own best critic? I lied. There will come a time when you have been immersed in the brief for so long that you are now violating Rule #3: You now know too much about your subject matter. If that happens, it is time to get help from someone with the requisite ignorance of the subject matter. In briefing a recent appeal, I had the luxury of assistance from an excellent lawyer from another firm who was asked to review my draft. His suggested changes initially seemed quite drastic; but as I began to work through them, I saw that they mainly involved the sequencing of arguments and the relative emphasis given to them. Interestingly, his primary tool for suggesting changes was the table of contents (see Rule #11), which laid out my sequence of arguments (and the problems with that sequence) much more clearly than the actual brief could ever do. As it turned out, the major surgery he proposed amounted to rewriting perhaps 10 percent of the brief. But the next draft was at least a 50 percent improvement over the one he reviewed. 13. NOW write that introduction. If the rules in your court permit an introduction, write the introduction after you have drafted the rest of the brief. You may not really appreciate the relative strength of your arguments until you have drafted them and massaged them once or twice. In addition, once all your arguments are down on paper, you may find one that lends itself to a strong introduction. Or, they may just give you an idea for a theme that you can use in an introduction, even though you may have to go back into the substantive arguments to play up that theme a little more. The introduction gives you an opportunity to pull it all together. Don’t even think about writing it until you really know what you are introducing. 14. Deep-six these and all other rules. If I don’t follow all these rules all the time (and I don’t), surely you shouldn’t either. Obviously, there can be no hard and fast rules that work for everyone. These are just strategies that often seem to work for me. What is important is that every lawyer who ever needs to write a brief should have his or her own strategies. Once you develop a “system” for getting effective briefs written on a timely basis, you may actually find yourself enjoying the process. Welcome to the club. The author is a partner at Lerner, David, Littenberg, Krumholz & Mentlik of Westfield, N.J.

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