Rutgers Law - Appellate Advocacy Class notes
BRIEF WRITING II 5. How to organize and write a brief (a) Planning phase (1) Identify reader (i) Remember who you are writing for: this court has no familiarity with the facts (and perhaps not with the law in this area) whatsoever (ii) RECEIVER orientation Different brief, different approach depending on court/judge (2) Outline: (i) Stream of consciousness list everything and don't worry about order (ii) Brainstorming wheel and spokes (iii) Index cards list everything on its own index card (3) Organizing - select and arrange (i) HAVE A POINT (what's your main theme? what relief?) organize into main and subordinate parts combine closely related points break points into additional parts as needed (ii) Options for presentation - Issue/Conclusion/Discussion - Priority Sequence (most to least important) - Chronological Sequence - Problem/Analysis/Solution - Comparison/Contrast - Question/Answer - Cause/Effect - Division and Classification (dividing a complex subject logically into smaller categories) (iii) Make your point up front. (4) Decide on Order of Presentation (i) number the main points in order of discussion, based on the method of organization chosen. (ii) Check for gaps in your information and reasoning.
(iii) Check the flow of ideas. Make sure everything is relevant and in logical order. (5) Rewrite your outline if it will make it easier to use. (b) Writing (1) Just do it. Don't worry about polish at this point. Don't worry about word choice. Just write. (2) If need be, mark as "first draft" (3) Follow the outline (4) If you're having trouble writing something, ask yourself how well you really understand the issue. Talk it out. Explain the point to someone else until that other person understands it. Then write it. (5) If the first paragraphs are a problem, skip them for now. They'll be easier to write when the rest of the work is done. (c) Revising (1) note difference between revising and editing Revision is really the heart of good writing. But computers make it easy to edit a first draft, so that the second draft isn't really a second draft at all (2) Take a break between writing and revising, if possible. The time away will help you look at your work more objectively. (3) Keeping your reader and purpose in mind, keep asking yourself: - What am I trying to say? - Does this sentence/paragraph/section say it? (4) Don't be afraid to delete or change much of what you've written. (5) If you're having trouble with a line or paragraph, try reading it out loud. Hearing a passage will sometimes help you see what the problem is. Reading out loud will also help you improve sentence rhythm and balance. (6) You know the writing problems you've had in the past. Check over your draft for these same problems. 6. Style issues (a) Simple - stay away from complexity where possible -- sentence length 25 words or less -- don't put too many messages in one sentence
-- most sentences work best with simple subject-verb-predicate structure (most people write with everything in subordinate clauses) but vary occasionally, esp. "to be" sentences (at the right was a shredder) -- to avoid lots of short sentences, subordinate related concept to main message ("The President destroyed the tapes. He did so because he believed it was necessary to protect national security." can be made into "Believing it was necessary for national security, the President destroyed the tapes.") - Avoid gaps in sentences (long phrases between commas) - stay away from jargon and legalese -- ordinary Anglo-Saxon words, short instead of polysyllabic - avoid overuse of negative expressions - avoid lengthy citations; paraphrase, choose the meat and skip the fluff (b) Well-organized - consider Rutgers method - don't hesitate to use tabular form for complex info (c) Interesting - there is nothing wrong with being creative - strategically choose every word for its tactical value -- concrete words make concepts easy to remember - use action verbs, strong voice, never passive where it can be avoided -- what's wrong with passive? 1. more words to say the same thing (John hits ball, ball hit by John) 2. it's weak and wimpy; writing passively only means no subject acts 3. it hides responsibility (press & government -- when reporters say questions are being asked, they mean THEY'RE asking; when politician says calls were made, he means he made them). In passive voice, no-one is doing anything, it's just being done. -- BUT there are times when you SHOULD use passive voice: 1. to avoid using "one" as subject too often 2. when identity of actor is the punch of sentence and you want it at end (the tapes were destroyed by the president) 3. when identity is irrelevant (statute was enacted in 1968) 4. when identity of actor is unknown (tapes were mysteriously destroyed) 5. when you want to hide identity of actor (Your file has been misplaced) 6. When person being acted on is the focus of the paragraph (Smith surely did not destroy the tapes. Nonetheless, HE will be asked to resign -- rather than nonetheless the President will ask him to resign) 7. To avoid sexist writing without him/her, he/she or plural. 8. When passive voice sounds better (d) Thorough, complete but also brief and concise (e) RELIABLE you simply MUST be accurate, all you have to sell is credibility 7. EDIT. EDIT AGAIN. IF TIME PERMITS, EDIT AGAIN.
- Edit out "It can be argued"; if you begin with "there is" then rewrite!! KILL THE FAT - Use parallel construction (if one word ends in -ing, all should; if one phrase begins with "where", all should) - use verbs instead of nouns (she prefers, not she has a preference for) - don't use "to be" verb where it doesn't belong - almost always a better verb - do use REAL verb (not she went, "yeah" then he was like) - find compound prepositions and drive a stake through their hearts ("with respect to") - skip adverbs and adjectives where you can but where you use them, use them and not phrases trying to be adverbs (i.e., vital issues, not issues that are vital) - watch out for things like singular subject, plural verb (BTW, this is NOT the way to avoid sexist writing) - CONSIDER HOW THE FINAL PRODUCT LOOKS -- long sentences, long blocks of black type, no dividing headers - WATCH FOR TYPOS!!! Grammar! Spell check!!! (But don't rely mindlessly on grammar- or spellchecking programs!)