Writing for the Judge
More critical than courtroom oratory in winning a ruling from an appellate judge are the written words of the brief writers. Meet some of the Alabama masters of writing for the judge.
Lawyers are lionized in movies for their abilities as orators, but in real life, it’s their gifts for crafting written arguments that often win cases, especially in state and federal appellate courts.
Legal brief writing is an art as well as a science, according to some of Alabama’s top brief writers. The judges who read them are humans to be won over with compelling, well-put arguments — not computers to be fed just the facts, the writers say. Smart consumers of legal services may want to consider a law firm’s brief writing skills when deciding on who will represent them in legal matters.
Some of Alabama’s best brief writers highlight below the basic elements of an effective legal brief.
It Should Flow in Any Direction
ANDREW BRASHER, Solicitor General, Alabama Office of the Attorney General
Last summer the National Association of Attorneys General honored Alabama’s Office of Attorney General Luther Strange with its Best Brief Award. The winning brief, written by Solicitor General Andrew Brasher and Deputy Solicitor General Megan Kirkpatrick, was judged as outstanding by a panel of leading members of the Supreme Court Bar.
That brief, written for Alabama Department of Revenue v. CSX Transportation Inc., illustrates one of the principles of good legal brief writing that Brasher says he tries to always keep in mind: Know your audience. “If you are arguing a point on bankruptcy to a bankruptcy court, the judge typically is an expert on that subject, but if you are arguing railroad issues before the U.S. Supreme Court, you need to remember that the judges are generalists and will need clear, concise explanation on important technical points,” Brasher says.
The brief he and Kirkpatrick crafted clearly addressed such points in convincing the court that Alabama should be allowed to justify its tax treatment of railroads as compared to motor carriers and water carriers. “We used analogies to general areas of law the judges did have knowledge of to help make our arguments,” Brasher says.
Another key consideration in knowing the audience for your brief is the level of court being addressed, especially to what extent judges are concerned about setting a precedent for other cases. If that is a concern, as it is can be for the U.S. Supreme Court, the brief should address the ramifications of potential rulings, says Brasher, who during his student days served as editor for the Harvard Law Review and now frequently comments on legal issues for NPR and scotusblog.
No matter what court you are addressing, properly structuring your brief is of critical importance, he says. “You want to ensure it’s easy to follow and in good order; that each argument flows and fits in to the next in any direction it’s read in,” Brasher says. “Judges don’t necessarily read briefs from beginning to end. Some begin in the center, looking for particular arguments.”
Brasher says the table of contents should serve as a clear guide to the elements of the brief, structured logically and filled with informative subheadings. “Through the table of contents you are basically summarizing and reiterating your arguments to provide clarity and easy access for judges, who are busy people and need to be able to find what they are looking for quickly,” he says.
Lee Bains Jr. (left) and John Neiman (right)
Not only to march, but to sing
LEE BAINS JR. AND JOHN NEIMAN, Maynard Cooper & Gale
Lee Bains Jr., shareholder at Maynard Cooper in Birmingham, has written thousands of briefs during the more than three decades he has practiced law.
“Some are long briefs covering a wide range of complex legal issues. Some are very short briefs targeting a single issue,” says Bains. “Some briefs require in depth, detailed recitation of facts. Some briefs deal exclusively with legal issues. Regardless of the length, complexity or focus of a particular brief, I try to make each brief the best that I have ever written.”
Simply put, briefs are written to convince the court to rule in favor of the client, Bains says, and contain three basics parts: an introduction, argument section and conclusion. “The brief should have a logical structure and compelling arguments, should be clear and easy to read, and should lead to the result that it advocates,” Bains says. “As Archibald Cox, the special prosecutor in the Watergate investigation, told my law school moot court team, ‘You want the brief not only to march, but to sing.’”
While the quality of a brief has enormous impact, the basic ethics and legality of the brief’s arguments and conclusions are key to its ultimate success, says John Neiman, chair of the Maynard Cooper Appellate Practice Group. Neiman worked early in his career as a law clerk for Justice Anthony Kennedy on the U.S. Supreme Court. “Good writing is important, but even the most cleverly written briefs aren’t successful when they advance a position that judges believe to be unfair or unjust,” he says.
One brief Neiman won’t likely forget is a recent one. “It’s always meaningful when a judge says something at oral argument, or writes something in an opinion, that suggests he or she was moved by something you put in a brief,” Neiman says. “This happened to some colleagues and me a couple of weeks ago at the U.S. Supreme Court in a case called Montgomery v. Louisiana, a fairly important decision involving criminal law, when Justice Scalia wrote a dissenting opinion that expressly cited a friend-of-the-court brief we had filed for some prosecutors’ groups. It was a dissenting opinion, which meant our side had lost. But it also was Justice Scalia, and it was one of the last opinions he ever wrote. That, for me, will always be special.”
Consider the subtleness of the sea
JASON TOMPKINS, Balch & Bingham
Clarity and credibility are two essential elements of good legal brief writing, says Jason Tompkins, a partner at Balch & Bingham in Birmingham. An editor of the “Alabama Appellate Practice Guide” and a member of the Board of Editors of “The Alabama Lawyer,” Tompkins frequently instructs legal writing and appellate briefing courses. “Judges need to be able to trust what you write, and most judges can see through poorly made arguments and sloppy facts pretty quickly,” he says. “Misrepresenting or omitting important facts will cause a judge to doubt the trustworthiness of your brief and weaken the chances of your client prevailing.”
On the state appellate court level, a legal brief has tremendous impact, because most cases are decided solely upon the briefs submitted. “State statistics show how rare oral arguments are,” Tompkins says. But even on the federal appellate level, a well-written brief is critical. Briefs may be 50 pages or more, whereas oral arguments may only last 15 minutes for each side, he says.
While on television attorneys impress with dramatic oral arguments, it’s good storytelling and a well-developed voice that can give power to a brief, Tompkins says. In addition to clear writing, aptly chosen metaphors and other literary devices can help provide for more interesting reading, engaging a judge. “You’re a translator, summing up the transcripts and other dry parts of the case,” he says.
Tompkins points to his successful brief for Otwell v. Alabama Power Co. as a case in point for good storytelling. The class action involved the plaintiffs’ claim of riparian rights on Smith Lake and allegation that Alabama Power unreasonably lowered the water in the lake. Alabama Power prevailed in the federal district court, and the decision was upheld by the U.S. Court of Appeals for the 11th Circuit. “Because the case pertained to riparian rights, we were able to use some fun water metaphors,” Tompkins says.
He says he is especially proud of the Otwell v. Alabama Power Co. brief because the opposing side’s brief was also extremely well written, both clear and engaging — even quoting “Moby Dick” author Herman Melville. “When you are up against a really good brief and you win, you feel the satisfaction that both sides were equally represented and that the correct party prevailed,” Tompkins says.
Art of the red pen
WINDY BITZER, Hand Arendall
In addition to the importance of clarity and credibility of the arguments in a legal brief, Windy Bitzer, in the Mobile office of Hand Arendall, emphasizes the need for conciseness. Weaker, lesser value arguments may best be left out of a brief, but it’s important to respond to all the arguments posed in an opponent’s brief. “Judges have many cases and many briefs to read. You want to keep your brief as short as you possibly can and still adequately cover your points,” she says.
Bitzer tends to write and then rewrite her briefs many times so that the final product is as clear, clean and concise as possible. “I am the queen of the red pen,” she says.
She believes that following the rules of a court’s required format for briefs is also tremendously important. “If you don’t use the right fonts, headings and other elements, it’s going to stand out, immediately calling into question your credibility and serving as a distraction,” says Bitzer, who is the leader of her firm’s Appellate Advocacy Team.
One of Bitzer’s recent successful legal briefs that stands out in her mind is the petition for a writ of mandamus in the case Ex parte Richard Talbott et al ruled on by the Alabama Supreme Court last fall. The Mobile Circuit Court was required to vacate its order denying the petitioners’ motion seeking dismissal of the claims against them by a former University of South Alabama professor. The brief met her standards for credibility, clarity and conciseness and was of interest because of its procedural arguments. “There were compound reasons for the court to rule in our favor, but the procedural arguments were key,” she says.
Bitzer has been recognized as a Rising Star for business litigation and employment law by the Alabama Super Lawyers publication.
Kathy Hagood and Julie Lowry are freelance contributors to Business Alabama. Hagood is based in Homewood and Lowry in Montgomery.