Today, we’ll look at a different kind of content — briefs, complaints, and other persuasive legal writings.
Many of my tips for creating better content can also help lawyers write more effective briefs. Write simply, clearly, avoid jargon, and remember your audience.
(For the sake of simplicity, I’m going to use the term “briefs” to refer to all writings meant to persuade, whether they’re complaints, letters, or motions.)
Here’s a tip that applies specifically to briefs: Own Your Demons.
In many disputes, you’ll have some ugly facts that you wish you could erase. Maybe your client had a bone-headed employee who did something awful. Or maybe an innocent person was hurt by your client’s service or product.
Don’t try to downplay or hide the bad stuff that’s uncontested. Own it. The worse it is, the more important it is that you acknowledge it.
And don’t shove the ugly facts in a footnote or try to hide them at the back of your brief.
Bring it up right away, warts and all.
Then explain why your client isn’t liable under the law, or why your adversary is asking for too much.
Most judges, I believe, will give you extra credit for being forthright. And you’ll have taken some thunder away from your adversary.
Here’s an example:
I recently read a brief that involved the Foreign Sovereign Immunities Act, raising the question of whether a foreign railroad company could be sued in the U.S. by a U.S. woman who had been harmed overseas. The thrust of this brief was that this poor railroad company was the victim of a terrible miscarriage of justice after a lower court let the woman’s suit go forward. The company’s lawyers warned of the dire consequences that would follow from this dramatic and unwarranted expansion of the FSIA.
And the woman? Midway through the brief I learn that she had both legs amputated after she fell between the train platform and the train.
Even if the woman’s gruesome injury doesn’t affect the train company’s liability, don’t spring a fact like that on a judge or reader. And don’t try to gloss over it or muddle the truth. You’ll look deceptive and insensitive.
Here’s how I would start this brief.
The plaintiff suffered a terrible injury in Sweden when she fell between a train platform and the company’s train, eventually losing both legs. But, even in such a tragic situation, U.S. law does not permit her to sue the foreign train company in this country.
There. You’ve gotten the worst stuff out of the way and can focus on persuading the court of the merits of your case.
While this technique may not apply to every matter, when you’ve got some ugly facts that you can’t dispute, own them.