Doctoring a brief

One of the jobs I like best in my role as a contract lawyer is getting draft briefs from clients and being asked to finalize them. Indeed, if I had my druthers, editing legal briefs would be the only work I do as a contract attorney. The editing process is a wonderful fusion of my skills as a grammarian (learned from my father, a man who kept a dictionary and a style manual by his bed-side); as a Bryan Garner groupie (I read his books; I attend his seminars); and as a lawyer with twenty years of experience at her back.

One of my favorite clients is a brilliant legal thinker and an absolutely terrible writer. Aside from the fact that he is addicted to legalese (mostly in the form of Latinisms, passive voice and redundant phrases), he has a few other twitches. His writing has a Germanic quality, in that he tends to structure sentences from the back to the front, with a lot of interlineated thoughts thrown in almost randomly for good measure. He doesn't believe in breaking ideas down into discrete paragraphs, so his briefs can have paragraphs that run for pages. Also, contrary to my footnote thery, he tends to put his best substantive arguments in the footnotes. His factual statements often follow a chronology known only to him, which makes them hard to follow. (And, speaking of chronology, he likes to throw in a lot of dates, most of which are irrelevant and serve only to confuse the reader.) I can honestly say that each and every one of you would hate to read a brief from this man. I'm certain that judges do.

As I said, though, the man has a brilliant legal mind. If you take the time to deconstruct the brief, to pull out the relevant facts and to analyze the legal arguments, they're usually very exciting documents. I thought I'd share with you how I revise these documents (assuming that I have the time to do a good job).

Aside from my own brain, I have a computer tool that I use to rewrite (and to write) briefs. I own NoteMap, which is an outlining program especially designed for lawyers. I've probably used this program for a decade, and can highly recommend it as an organizational tool for legal writers. (Although I should warn you that LexisNexis bought out CaseSoft, the company that created it, and the price promptly went up.)

What's nice about NoteMap is that you can move ideas around. I'll start off by creating two very simple headings in the outline program (or, as I think of them, bins, since I toss information into them): Facts and Legal Arguments. I then go through every sentence in my client's brief, rewrite it into NoteMap in English, and then drag it to the Facts or the Legal Arguments bin, as appropriate. Within a short time, I have a very basic outline that neatly separates the two major components in any legal brief.

Having down this first, rough break down, I start doing ever smaller break-downs. I like to start with the facts, since knowing the facts well aids my ability to present the legal arguments. This means that my second sort usually consists of organizing the facts chronologically. (Again, my NoteMap program makes this easy by allowing me to click and drag ideas from a dominant position into a subordinate position.)

Bryan Garner makes the point -- and it's the correct point, I think -- that people best understand stories that move forward in time. Ignore such creative movies such as Memento, which follows an amnesiac back into time, or brilliant TV shows such as the famous Seinfeld episode that starts at the end of the story. If you don't have a team of Hollywood script writers behind you, stick with an ordinary chronology.

As you go through your chronology, you may discover, of course, that certain facts group themselves together by concept and create overlapping chronologies. That's okay. Simply create bins for them such as The parties negotiated a new contract and The trial court granted a motion for preliminary injunction. Even if those two events happened more or less simultaneously, with negotiations occurring through the preliminary injunction phase, they're clearly separate factual concepts and should be treated separately. I therefore drag relevant facts into one or the other of those bins and, once within the bin, arrange them chronologically.

After I've ordered the facts to my satisfaction, I turn my attention to the law. Law, of course, should be organized by ideas. By this time, having read and torn apart my client's brief, I should have a good idea of the ideas he is advocating. I'll create bins for those ideas: Standard of review; The trial court erred when it held that the brief was not time barred; Even if the brief was not, in fact, time barred, the trial court nevertheless erred when it . . ., etc. As you can see, these bins are beginning to look remarkably like the Table of Contents in the finished brief.

With my idea bins set up, I use my outlining programming to pick up each of the arguments I copied from my client's brief and toss them into the appropriate bin. Since some ideas are huge, I may discover that a given idea bin itself needs to be broken down some more. For example, in a bin about whether a brief was time-barred, I may discover that my client has six distinct arguments, all of which need their own sub bins, each with its own arguments.

If this isn't making sense, let me explain it using the method I used to teach my kids how to outline. Once they became reasonably conversant with their subject, I had them reel off to me every fact that they could remember. For example, for his George Washington report, my son told me facts that included where Washington was born, when he was born, where he lived, how he served in the British military, how he came to head the American military, the major battles in which he fought, his election as President, and his death. I typed each of those facts into my computer, printed up the resulting page, and attacked it with my scissors so that each fact ended up on its own sheet of paper.

I then got out several envelopes and labeled them: Washington's early life; Washington as a British soldier; Washington as the General in the Revolutionary War; and Washington as President. I had my son go through each slip of paper and put it in the appropriate envelope. We next decided what the correct chronological order was for each envelope. We then went through each envelope, pulling out the little slips of paper, and putting them into chronological order. When they were sorted to our satisfaction, we taped these slips to a fresh sheet of paper in the assigned order. By the end of the process, we ended up with four properly ordered sheets of paper, on each of which were well organized facts supporting the idea on the envelope. Using those sheets as guides, my son quickly wrote a coherent third-grade essay on George Washington.

In other words, using paper, scissors, envelopes and tape, I showed my son how to do exactly what it is I routinely do with my NoteMap program: I sort my ideas.

What usually happens by the end of my sort is that I've thrown out my client's chaff and ended up with a lot of golden wheat, all of it laid out in a coherent manner. I copy the resulting outline into Word Perfect, and turn this outline poetry (as I like to think of it) into legal prose. I often discover, as I write, that I see different relationships between the ideas than I first saw in the outline, and that's okay. That's the creative process at work, and it's easy to do when all the information is in good order and at your finger tips.

At the end of the day (or week or month, depending on the size of the project), I have a beautifully written, well-organized, persuasive brief, that preserves every brilliant thought my client had and that makes these thoughts readily accessible to the court. Briefs that were unintelligible at the beginning, go on to win at the end -- which is a very satisfying outcome for me and my client.

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