Clear writing makes winning more likely. Why?
Consider our courts’ workloads. A federal district court judge, on average, annually handles over five hundred filings.
The federal appellate courts annually receive more than 50,000 appeals. State courts experience the same pressures.
These docket pressures, however, do not diminish the role of briefs. If anything, it is enhanced. Judges—even when they hear oral arguments—regularly make their rulings based on the briefs. A winning brief, then, must convey to the reader the key points for victory—and do so in one reading.
This reality reinforces the value of clear writing; achieving that clarity is the challenge. To promote this endeavor, I offer two principles—and then propose practical steps to adhere to the principles.
Principle No. 1: Every sentence — and every word in the sentence — needs a purpose. Both the writer and the reader should understand that purpose. Sentences without purposes should be cut. A writer should cut sentences without purposes. This principle isn’t novel: Strunk & White’s Elementary Principles of Composition instructs writers to “omit needless words.”
What is more novel, though, is finding briefs that follow the principle. Consider the following sentence in a summary judgment brief that I received recently. The case concerns whether the defendants gave the plaintiff fraudulent financial information:
Plaintiff’s characterizations of the financial information provided by Defendants do not change the undisputed facts that Defendants never held out the financial information as being anything other than estimates of expenses and net income for commercial property to be constructed in the future.
What’s the purpose of this sentence? It arguably has several points: (1) the defendants told the plaintiff that the relevant financial information was an estimate; (2) undisputed facts prove this point; and (3) the plaintiffs’ characterizations do not change the undisputed facts.
A reader, though, can’t tell which point is most essential. A second principle can solve this problem.
Principle No. 2: Readers value any moment in a sentence when the grammatical structure comes to a full halt.
This rule comes from Duke University emeritus writing professor George Gopen. He calls each such moment a “stress position.” Periods, colons, semicolons, and dashes are stress positions.
To restate this principle, convey only one point per stress position. In the example above, the author used one stress position — a period — but tried to convey at least three different points. Assuming that those points are all important, consider this revised draft that conveys one point per stress position.
Here, summary judgment is warranted based on an undisputed fact: the defendants told the plaintiff that the relevant financial information was an estimate. The plaintiff’s characterization of this fact does not change its undisputed nature.
This could probably be tightened further, but the stress positions focus the reader on the key points: (1) there is a critical undisputed fact; (2) the defendants told the plaintiff that the data was merely an estimate; and (3) the plaintiff’s characterizations don’t change the analysis. This one trick created a powerful effect. Give this a try with a brief you’re writing now.
Now, having urged faithfulness to these principles, I should admit a significant consequence: this faithfulness consumes time. Your schedule has a fixed number of hours. Your client’s litigation budget, moreover, has limits. In my experience, though, at least four specific steps can relieve these burdens.
First, if you’re the initial drafter of a brief, leave yourself sufficient time. Set a specific, realistic deadline. Share that deadline with those on your team, and then meet it. If you are the senior attorney, impose a deadline; confer, though, with the initial drafter to ensure that the deadline is feasible.
Second, start drafting early. Applying these sentence-specific rules—especially in the initial draft—requires multiple editing rounds. When the initial drafter follows these rules, subsequent edits by senior attorneys can be more exact. The result is a more focused, more powerful brief.
Third, use multiple editors. A brief’s singular purpose is for the reader to understand the point that the writer wants to convey. Multiple editors will read with different perspectives. Their opinions will increase the chance that you’ve considered the perspective of the most valuable reader: the court.
Fourth, discuss these issues with your client. In particular, prepare a realistic budget that takes into account the length of the drafting process. Set a realistic deadline, too, that is multiple days—if not well over a week—before the court deadline to send a draft to the client. Candidly tell your client that you want feedback about which arguments were the hardest to follow; in other words, ensure that your client comprehends the points that you want to convey. Here, honest feedback is critical.
In sum, and based on my experience, purposeful sentence-writing—and taking these practical steps—can maximize your brief’s clarity. With apologies to Branch Rickey, winning briefs are the residue of design.
 Admin. Office of the U.S. Courts, Judicial Business of the United States Courts: 2012 Annual Report of the Director, http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2012/appendices/X01ASep12.pdf (last visited July 11, 2013).
 Admin. Office of the U.S. Courts, Judicial Business of the United States Courts: 2012 Annual Report of the Director, http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2012/tables/B00Mar12.pdf (last visited July 11, 2013).
 See, e.g., N.C. Admin. Office of the Courts, 2011-12 Quick Facts, http://www.nccourts.org/Citizens/SRPlanning/Documents/quickfacts11-12.pdf (last visited July 11, 2013) (showing that in a recent one-year period the North Carolina Court of Appeals heard over 2,500 appeals).
 See, e.g., Michael Duvall, When Is Oral Argument Important? A Judicial Clerk's View of the Debate, 9 J. App. Prac. & Process 121 (2007).
 George Gopen, On the Papers: The Importance of Stress: Indicating the Most Important Words in a Sentence, Litigation, vol. 38, No. 1 (Fall 2011).
*This article originally appeared in the January 2014 Issue of For the Defense (A Defense Research Institute Publication).