HOW TO WRITE

THE PERFECT
BRIEF
By Gary Kinder
INTRODUCTION
The brief is like a mini-trial. You may write more than one brief in the course of a case—for
example, for pretrial motions, at the conclusion of trial, or for an appellate court1—and each
helps the court2 understand why your position is the most meritorious.
This book contains WordRake’s checklists and techniques developed by lawyers who have
taught tens of thousands of litigators over the past 25 years. WordRake’s methods address:
» Summarizing your case
» Presenting relevant facts
» Making effective arguments
» Understanding the judge’s viewpoint
Our goal is to make your professional life easier by helping you understand the whole process
at a deeper level—what moves a judge to say yes.

PART 1:
REASONABLENESS
AND ETHICS
No matter how strong your case, there are
facts or law working against you. One of the The more reasonable we
most effective tools in the litigation arsenal make our brief, the more
is the ability to acknowledge and address
them. Many lawyers don’t. As a result,
likely we are to prevail.
the judge may view them with skepticism
or outright mistrust, to the detriment
of their case—and even future cases.

1 In an appellate brief, you must include all assignments of error so as not to waive an issue on appeal, but how to do so is beyond the scope of this
book.

2 You might write a brief for many different fact finders, including trial judges, appellate judges, licensing boards, magistrates, and maybe even
arbitrators and mediators. For simplicity’s sake, we will refer to the fact finder as a judge.

2 © WORDRAKE HOLDINGS, L LC
THE UNETHICAL APPROACH
Writing unethical or unreasonable briefs doesn’t
Model Rule 1.3:
just lose cases, it may even subject you to discipline
Diligence
by your state bar—especially if you misstate the In 1983, the ABA promulgated
facts or law. Misstating facts or law is dishonest and the ABA Model Rules of
prejudicial to the administration of justice. Professional Conduct and
a new standard: “Model
There are now disciplinary rules that address civility.
Rule 1.3: Diligence,” which
With brief-writing, this means you must refrain from
requires a lawyer to “act with
personal attacks. Instead, even if you are moving
reasonable diligence.” The
for sanctions, stick to the facts and the effect of the
accompanying Comment
other side’s behavior on your case or you will lose
specified that the new
credibility and may be subject to discipline.
standard “does not require
the use of offensive tactics or
THE WORDRAKE APPROACH preclude the treating of all
persons involved in the legal
The WordRake method calls for you to either
process with courtesy and
explain why your situation is different or use your
respect.”
opponent’s facts against the other side. The benefit
of this approach is that addressing law or evidence To be diligent or zealous,
harmful to your case often reduces its significance. many of us still believe that
We include an example toward the end of this book. we must shout on paper and
belittle opponents. Even the
The more reasonable we make our brief, the more
highly principled among
likely we are to prevail. To do that:
us sometimes let digs and
» Be honest about the law and the evidence in jabs enter our briefs—it feels
the case good—but we forget that
every slip is noted first by a
» Explain why your client deserves to win
clerk, and then by the judge,
That said, it’s still our job to discredit and attack the and that with every slip we
other side’s case. That’s the oath we have taken. In lose a little credibility.
this book, we’ll show you the most successful ways
to defeat the other side’s case—while remaining
ethical.

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PART 2: THINKING
LIKE A JUDGE
Judges, like the rest of us, can get irritated,
especially with lawyers who indulge in Because our job is to provide
hyperbole or personally attack or insult our client with the best possible
opposing counsel or the court. Courts
respond well to the lawyers who try to
chance of winning, we are
help them do their job, which is to be fair. wise to signal to the judge
Because our job is to provide our client deciding our client’s fate that
with the best possible chance of winning,
we are wise to signal to the judge deciding
we are the credible advocate.
our client’s fate that we are the credible
advocate. But how do we do that?
Think of every brief as a mini-trial. The way we frame the law and the evidence can make
the difference between winning and losing. While litigating with honesty and calmness may
encourage a judge to listen to us more carefully and move her closer to wanting to decide for
us, that approach alone will not win your case. Its absence will harm it.
Here are five ways that your brief can make your case while maintaining a reasonable and
credible tone.

DON’T DEHUMANIZE
Don’t dehumanize your opponent’s client. If you are a prosecutor, calling the defendant an “animal”
or a “rabid dog” is reversible error and can subject you to discipline. Even in a civil case, calling
witnesses names or insulting opposing counsel is not only improper, but doing so can make the
judge sympathize with your opponent even if your conduct doesn’t trigger a bar complaint.
While some attorneys say it’s best practice to refer to the client by name (first name if the client
is an individual) and the other side as “plaintiff” or “defendant,” others say this is a trick that
the judge will see through. Since you are telling a story, consider referring to all parties by
name, which has the benefit of making your brief look less generic. This works especially well
when there are multiple parties.

CHECK THE HYPERBOLE

Judges know that a lawyer has no case when he adopts a shrill tone. In our quest to be a
zealous advocate, we sometimes part with common sense and write sentences that look like
they belong in an unbalanced manifesto or a parody of legal writing. While writing zingers

4 © WORDRAKE HOLDINGS, L LC
might make us feel better, inflammatory statements are improper enough that they look
bizarre and undermine our own credibility.

AVOID LITTLE DIGS

Don’t use derogatory adverbs to open a sentence. Words like unfortunately, interestingly,
curiously, conveniently, surely, incredibly, amazingly, or any similar adverb are little digs that
diminish our credibility. These phrases are neither colorful nor clever; they’re unreasonable,
border on the uncivil, and signal to the court that your position is weak. And while no judge
will sanction us for using the word surprisingly to discuss some action by an opponent’s client,
it might irritate the judge. We do not want an irritated judge reading our brief, especially if we
caused the irritation.

IGNORE THE BAIT

If your opponents write digs and hyperbole, do not respond in kind. Rarely will a judge
comment on it, but the judge notices. If we respond to this gamesmanship, we surrender the
high ground and find ourselves in a petty war that tries a judge’s patience.

WRITE IN PLAIN LANGUAGE

Effective writing does not use legalese. It’s clear and simple. Bloated writing stuffed with
medieval jargon and convoluted sentences that go on forever provokes mistrust. It looks
like you’re hiding something because you’re not just saying it straight out. Legalese can even
introduce confusion. Plain language is straightforward, uses terms of art where it should, and
says what it means.

DON’T WRITE THIS AT WORK

Often, we write take this approach because we think our clients want us
to, but our clients would rather win, and writing like this does not bring
success.
1. Hyperbole: “This is a story of a legal system run amuck, a Kafkaesque
demonstration of tyranny given free rein.”
2. Diminishing Adverbs: unfortunately, interestingly, curiously,
conveniently, surely, incredibly, amazingly
3. Inflammatory Language: approaches the frivolous or borders on the
laughable

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PART 3: ORGANIZING
FOR EFFECTIVENESS
The judge needs the facts, the law, and
the argument. Do not make the court Rather than allowing your
muddle through stacks of disorganized opponent to define the issues,
or verbose headings. We recommend
that your headings be simple, and
take control from the first
preferably one clear word: Introduction, sentence. Set the tone and
Facts, Argument, Conclusion. If we label provide the judge with a reason
them with more than one word, we risk
sounding insincere and untrustworthy.
to favor your client and your
case. Add the details later.

DON’T WRITE THIS AT WORK

Our word choice can raise or ease suspicion. Contrast “Facts” with
“Overall Background of the Case.” The latter sounds like an unreliable mix
of fact and opinion.

The subheadings should guide the judge, not confuse them. You might need subheadings in a
complex case to help the court follow along. But these should be succinct.

USE THE INTRODUCTIONS SPARINGLY

Most lawyers make preliminary statements in their introductions and the effect is like throat-
clearing. There are several situations where including an introduction would be wise; a
sampling:
» Our case is one of first impression.
» The judge is new to a complex case with a long procedural history.
» We need to tell the judge that our Motion for Summary Judgment addresses only
certain counts.
» So many players are involved, the judge needs a program.

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 BREAK THE HABIT #1
Unless you have a compelling reason to write an introduction, we would
not introduce a brief. We use the opening sentence to get the judge
leaning our way immediately and follow that path until we have the
judge wanting to decide for us. Check with the partner before skipping
introductions.

AVOID REPEATING THE CAPTION

Most lawyers open briefs by repeating the information found in the caption just above the
introduction. Most judges skip that paragraph because it contains nothing they need to know.
So why do most briefs still open like this?

DON’T WRITE THIS AT WORK

COMES NOW Montezuma Chemical Company, Defendant, in the above
entitled and numbered cause, and responds to Plaintiff Ballard Chemical
Company, Inc.’s Motion for Leave to File First Amended Complaint, and in
support thereof would respectfully show the court the following:
. . . when one inch above that sits a caption that reads:
MONTEZUMA CHEMICAL COMPANY’S
RESPONSE TO BALLARD CHEMICAL COMPANY, INC.’S
MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

BEGIN YOUR BRIEF BY FRAMING THE ISSUES

By framing the issues at the outset, you take control of the case—both in open court and
in your brief. You can usually do this in three sentences (although the second sentence—
explaining the why of your position—might run to two or three sentences):
Sentence One: Your position
Sentence Two: Why you think this way
Sentence Three: What you want the judge to do about it

© WOR D RA KE HO LDINGS , LLC 7

By giving this overview up front, you provide the judge and the clerk with the context for
understanding everything that follows. For instance:

EXAMPLE
Summary
Sentence One: The Tlingit Tribe’s unprecedented demand for site
restoration distinguishes all law on ejectment proceedings and requires
this court to consider two issues never addressed by another court.
Sentence Two: Many tribes have tried to eject landowners, but no tribe
has ever demanded that a landowner first restore the land to its natural
state of over half a century earlier.
Sentence Three: Because the Tribe’s demand comes 60 years after the
first dike was built and poses a huge expense for Defendant Stockard, and
because the Tribe’s demand cannot be met without first determining the
rights and duties of the United States under the Environmental Protection
Agency, Stockard asks this court to allow him to do discovery into laches
and to join the United States as an indispensable party.

Rather than allowing your opponent to define the issues, take control from the first sentence.
Set the tone and provide the judge with a reason to favor your client and your case. Add the
details later.

DON’T CLUTTER YOUR OPENING PARAGRAPH WITH DEFINED TERMS

For many years, the trend has been away from defining terms. We advise lawyers not to define
terms for three reasons:
» defining terms clutters our writing, making it difficult to read
» the reader must bear the burden of keeping track of our definitions
» definitions serve no purpose
Using a shorter version of a long name is fine, but you need not tell the judge you’re going to
do that; just do it. If you mention Hamilton Regional Medical Center, and in the next sentence
or paragraph you write Hamilton or Hamilton Regional or even the medical center, every reader
will know what you mean; you need not define it even at the first mentioning.

BREAK THE HABIT #2

If you’re an associate, always check with the partner before dropping
definitions, but we advise against using them because we rarely need to.

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PART 4: DEVELOPING
YOUR FACTS
The perfect brief requires keen investigation
and shrewd fact-gathering. The better the No brief can exceed the
facts we gather, the better the story we can quality of its facts—so invest
tell the judge and the more persuasive our
brief. No brief can exceed the quality of its
in finding the right facts.
facts—so invest in finding the right facts.
While we may have learned to present facts
like a news reporter, few are trained to
find them like an investigative journalist.

HOW TO DEVELOP FACTS

We must find the facts before we can develop the case and write the brief. The better our
fact-finding and analysis, the greater our odds of winning. Developing facts requires us to be
curious and strategic. We have three ways to develop our facts:
» search the Internet
» visit the site
» listen carefully during interviews and depositions

Search the Internet

The first thing we should do when we become involved in a case is analyze the website of the
other party. Often, information helpful to our case will appear on that website.

EXAMPLE
Our client used to work for Mega Gym, but he quit and opened Small Gym
across the street. Mega Gym has sued him for violating a non-compete
clause. Their lawyer wants a temporary restraining order or Mega Gym
will suffer “irreparable harm.” On the Mega Gym website, we discover
that Mega Gym has 1,300 gyms and claims to have brought good health
to “millions worldwide.” These facts support our position that Mega Gym
will not suffer “irreparable harm” while the issues work their way through
the court system.

© WOR D RA KE HO LDINGS , LLC 9

 TIP #1
After we annotate our opponent’s website, we should check it a
few weeks later to see if anything has changed. If they have added,
removed, or rewritten the content, it suggests that our opponent
considers the original information damaging. And if they later pretend
that the original never existed, we have already preserved it. Make sure
you take a screenshot of the website as you find it to prove the before-
and-after. By the same logic, we should analyze our own client’s website
and be prepared to counter any weaknesses, but advise the client to leave
it as it is.

Go to the Scene
Getting out of the office seems to be the hardest part of gathering facts for most lawyers, but
this is often where we find the best facts —where it all started.
We visit the scene because we never know what we will find. It will never look and feel like
what we imagine. And it will reveal facts not found in the police report, pictures or videos taken
at the scene, or eyewitness accounts. The physical attributes of the scene will suggest clues we
can get nowhere else, no matter how uninteresting the scene might seem.

EXAMPLE
Our client was hit by a driver running a red light. Liability is not an issue,
but the impact broke our client’s back, sending him to the hospital for six
days and landing him in a full back-brace for three months. The driver has
no insurance, and our client’s Underinsured Motorist coverage is for the
minimum $25,000—leaving a $145,000 gap for medical bills alone. Who
will pay for the damages?

Though visiting the scene might not change the outcome with the uninsured motorist, it might
reveal other helpful facts. If we visit the scene soon and at the same time of day the crash
occurred—6:30 a.m.—we notice things like the sun glaring into the intersection. A passerby
tells us the light is new and that many local residents protested its installation because they
thought it was unnecessary and difficult to see with the sun. The city put it up anyway. We also
notice that the city had not installed retro-reflective borders on the traffic signal’s backplates,
which would have made the light more visible. Now we have a bigger defendant. One with
insurance. But none of this is in the police report or witness statements.

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Listen Carefully During Interviews and Depositions
When you interview a client or depose a witness, listen for two categories of words; they are
the key to the most persuasive facts:
» conclusions
» abstractions
Conclusions are merely opinions, so they count for little unless the witness is an expert. Cold
is a typical conclusion. When the deposed says it was cold, we ask, “How cold?” because we
can’t picture cold. Fifty-two below zero is a fact, and we can picture it. When we put it in our fact
statement, so can the judge.
An abstraction is not an opinion, but we still can’t picture it, like password coding systems or
space-age materials. We don’t know what the deposed means, so again, we must ask.

TIP #2
Opponents will usually answer with conclusions and abstractions
because they want to answer our questions without telling us anything.
Our client and anyone who supports our client will answer with
conclusions and abstractions because they don’t know what we need to
support the case we imagine. So listen closely to everyone for words like
difficult, and be ready to develop that conclusion into a fact.

A true story: Lead counsel at a defendant insurance company deposed the head of his client’s
IT Department. During the deposition, the engineer answered one question with “It was a
difficult transition.” Difficult is a conclusion, the engineer’s opinion. The lawyer asked what the
engineer meant by difficult. The engineer said that while shifting all insurance policies onto a
new system, they had to continue processing 2.4 million claims. That’s a great fact.

TIP #3
Ask the deposed to compare their conclusion to something else. When
the lawyer asked the engineer what he would compare the difficult
transition to, the engineer said, “It was like trying to change the tires on a
car going 60 miles an hour.” That sentence went in the lawyer’s brief.

© WOR D RA KE HO LDINGS , LLC 11

BE CURIOUS
Over the years, we’ve learned three curiosity questions to keep in the back of our litigator’s
mind and bring out when necessary; they will jumpstart any conversation with most clients:
» What is this?
» What does it do?
» How does it work?
Your client is suing a company because they delivered her a rare book for which she paid
$500,000, and it was badly damaged. The seller warranted that the book was in As New
condition. But when she got the book out of the packing, it contained a deep slash in the
cover. Your client says that the defendant misrepresented the condition of the book. The
defendant claims that your client slashed the book with a box cutter when she opened the
box. This case is now a swearing contest.
You ask your client if she kept the packing material and she said that she had, because she
initially wanted to send it back and then thought better of it. You ask her to bring all the
packing material. When she brings it to your office, you see that the book was packaged top
and bottom in a thick casing of Styrofoam. You ask her if she had ordered other books from the
company and she said that she had, but she was so upset by the condition of the expensive
book that she was afraid to open them.
You have her bring the books to your office. On video (while holding your breath), you have her
open one of the books. It, too, is sandwiched between two thick pieces of solid Styrofoam. A
box cutter could not have cut through the layer of Styrofoam.

PART 5: PRESENTING
YOUR FACTS
Keep the facts interesting,
“The Law Will Be What It Ought to Be” relevant, and favorable. Where
A federal judge once told us, “Facts are the facts aren’t favorable, we
everything. The law will be what it ought to
acknowledge them. When we
be.” That’s because all laws are based on:
do that, we establish credibility
» equity – is it fair?
with the judge and create
» logic – does it make sense?
empathy for our position.

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A judge knows the law, how it works, the difference between a tort and a contract. But she
knows nothing about our case. The fact statement is our opportunity to educate her.

NEVER ARGUE IN THE FACTS SECTION

If we want a judge to look favorably upon us and our case, we must distinguish between fact
and argument and leave out all opinion—even simple words like hot and cold. Doing this
buries important facts and wastes space: You have an Argument section for a reason.

DON’T WRITE THIS AT WORK

Opinions are self-serving and make judges suspicious, ready to double
the burden on us. Yet many lawyers write sentences like this in their fact
statements:
Simply put, allegations of troubled labor relations at Ypsilanti are a
post facto creation of the Charging Parties in a desperate attempt to
justify this meritless litigation.
Often, we write these sentences because we’re so used to seeing and
writing similar sentences, we don’t realize how they work against us:
Any allegation that the loan was “fraudulent,” however, is baseless.
The remedy sought is plainly inconsistent with the facts.
Opinion sounds like we’re posturing and being disingenuous. When we
write our facts without opinion, we tell the judge that the facts matter
most.

A GOOD FACT STATEMENT ARGUES FOR US

Imagine reading the following as the opening sentence of a brief:
On October 6, 2018, Plaintiff Antonio DiMarco smashed the glass of a vending machine
with a tire jack to retrieve a bag of chips stuck in the dispenser.
After reading one sentence—with no conclusory words—the judge is already leaning in our
favor. The judge may be thinking, If that were my employee, I would have fired him—which is
what our client did.

OPEN WITH A FACT THAT IS INTERESTING, RELEVANT, AND FAVORABLE

When drafting our fact statement, we should focus on facts that are interesting, relevant, and
favorable. And we open with those.

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 EXAMPLE
In December 2018, Plaintiff James Holman asked a co-worker if he knew
how to convert an unalterable PDF document into an alterable Word
document. The co-worker did and explained the process to Holman.
The document was the 2018 Simmons Commission Plan, a contract for
Holman to sign. Before signing, Holman modified it to his benefit, then
returned it to the Senior Vice President of Sales. When the Vice President
reviewed the signed Commission Plans from his regional sales managers,
he noticed that Holman’s was different than the others.

From the very beginning, we are showing the judge the plaintiff’s lack of integrity. But we never
make that accusation; we let the facts speak for themselves.

AVOID NAMES, DATES, AND NUMBERS, UNLESS THEY ARE IMPORTANT

Names, dates, and numbers carry an aura of importance, so a judge will try to keep track of
them. if they’re not important, the judge will still try to keep track of them, because the judge
doesn’t know.

DON’T WRITE THIS DO TRY THIS

“On January 21, 2019, “On January 21, 2019,
Gonzales violated company Gonzales violated company
policy when he . . . . As required policy when he . . . . As required
under company policy, he was under company policy, he was
provisionally discharged on provisionally discharged, and,
January 26, 2019. On January 30, after a provisional discharge
2019, after a provisional meeting, formally terminated
discharge meeting, Gonzales’s at the end of January. Three
employment was formally days later, the Union filed a
terminated. On February 2, 2019, grievance.”
the Union filed a grievance.”

Instead, give numbers and dates only when relevant. Otherwise, say things like “It only took a
month” or “by the end of the school day.” By doing it this way, we give our judge a timeline and
still let her know that the process continued fairly and expeditiously without confusing her with
insignificant dates.

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CHOOSING FACTS TO HIGHLIGHT
The facts you highlight frame the case your way. No matter how complex, there are only a
handful of facts that decide the outcome. Discussing more than you need clutters your brief.
Further, discussing irrelevant facts might confuse the court.

DON’T WRITE THIS DO TRY THIS

“In July 2017, the Alhadefs “When the Alhadefs sold
arranged to sell their house their house for $659,500,
for $659,500 to the Mulvaneys the balance on the loan was
on a real estate contract. The $426,000.”
principal balance owing on the
loan at that time was $426,000.”

DON’T GIVE UNNEEDED BACKGROUND

INFORMATION Beware of
Background information on a party is rarely helpful. If we start Irrelevant
with the action, we establish a reason for the judge to want to Facts
know more about the party. We open with what they’ve done or
Facts suggest
what’s happened to them; then we tell the judge who they are.
issues; irrelevant
We set our story in motion from the first sentence, then come
facts also suggest
back to introduce the characters.
issues. Irrelevant
facts confuse the
judge and might
DON’T WRITE THIS divert the judge’s
Tideco manufactures a wide variety of kitchen attention to
equipment and is one of the world’s leading irrelevant issues.
kitchen appliance companies. Tideco has 46,000 While the judge
employees worldwide, with approximately 17,000 is considering
located inside the United States and 29,000 based irrelevant issues,
internationally. they are ignoring
the real ones. If
a fact does not
DO TRY THIS
help give rise to
In spring 2018, Tideco’s business performance our issues, it is
had exceeded expectations, and management irrelevant and
wanted to reward all 46,000 of its employees
should not appear
worldwide with a paid day off: Appreciation Day.
in our Facts.

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REWRITING TO LEAD WITH THE MOST
TELLING FACT Real Case #1 –
We understand the tug toward setting the stage with Medical Assistant
background and details, but if you were a judge, would Sues Hospital
you rather read about the plaintiff’s duties and the for Wrongful
defendant’s procedures or a paragraph more like this? Termination
After a short, formal
EXAMPLE
paragraph in the Mediation
Statement, the lawyer
Over a two-year period, the representing the hospital
plaintiff arrived at work late
opened by describing the
almost 200 times. During
parties:
the same two years, while
at work and using hospital Plaintiff is a former Medical
computers, he “day-traded” Assistant . . . Detox Unit . .
in the stock market. The . Regional Medical Center
report from the hospital’s . . . hired on or about . . .
IT Department—showing
terminated for cause on
his daily visits to stock and
financial websites—was too Defendant is a hospital and
voluminous to e-mail and licensed nursing home . . . one
had to be burned to a CD. of the largest resources . . .
long term care . . . substance
abuse expertise
These are facts the lawyer could have used to set the
tone of his brief up front. But he buried them. After describing the parties,
the lawyer followed with
“The Relevant Facts,” which
TIP #4 explained the “Detox Unit”
and how patients are
To find the most telling fact,
admitted and screened
ask yourself:
and treated. Then he
“What is the one fact in my discussed the plaintiff’s “Job
case that—were it not true— Responsibilities” as a medical
would cause me to lose?” assistant, like drawing blood
Open with that fact. Do not and taking urine samples.
leave the judge wondering: These descriptions filled
“Why do I need this the first 1,000 words of the
information?” “What does it Statement. Not till then do
have to do with the case?” we see a candidate for most
“When will they get to the
telling fact.
point?”

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After reading these three sentences, a mediator
will likely lean toward the hospital. By the time the Real Case #2 –
mediator gets to the plaintiff’s allegations two or Employee Sues
three pages later, they sound like weak excuses Employer for
from a subpar, insensitive employee whom the Discrimination,
hospital has every right, even a duty, to terminate. Harassment, and
Now the lawyer can explain the plaintiff’s duties Unfair Treatment
and why his chronic tardiness frustrated the
timed responsibilities of other hospital personnel, If we represent the defendant-
put patients at risk, and exposed the hospital to employer sued by an employee
malpractice lawsuits. and open with a list of the bad
things the employee has claimed
about our client, we establish the
TAKE CONTROL OF YOUR CASE AND case in the judge’s mind as An
SET THE TONE AT THE OUTSET Employer Discriminates, Harasses,
Instead, set the tone for the case with a few and Treats Employees Unfairly
sentences that read more like this: case, which we then spend the
rest of our brief denying. The first
sentence in this brief:
EXAMPLE
Plaintiff filed an amended Title
On November 16, VII Complaint under the Civil
2017, Plaintiff violated Rights Act of 1964, alleging
Commonwealth’s drug three claims for relief: (1)
and alcohol policy when
“discrimination based on race”;
he tested positive for
(2) “harassment and unfair
cocaine. After being given a
treatment on the job”; and (3)
“last chance,” the plaintiff
promised to complete drug “unfair labor practices.”
rehabilitation and remain Our client and our case look
alcohol and drug free. One especially weak when we
month later, he again tested
follow our presentation of the
positive for cocaine.
other side’s case with denials
like “Complainant’s claims
You now have the judge’s attention, and he’s are totally without merit.” And
already leaning toward your client. Opening like “Neither his national origin
this establishes the case as an Employer Had No nor his race played any role
Choice But To Terminate Employee Under the whatsoever in the decision to
Influence of Drugs and Dangerous to Himself and end his employment.” That is
Others case, which makes the judge wonder how our opinion, and judges don’t
the plaintiff ever had the gall to sue your client. care what we think; they want to
Same case, different perspective, different ordering know how we got there.
of facts.

© WOR D RA KE HO LDINGS , LLC 17

 TIP #5 A Brief Is Not a Law
Don’t overwhelm the judge Review Article
with minutiae or present
the other side’s case. If we The biggest criticism partners
open with mundane detail, level at litigation associates is
we confuse our judge about that they write a brief the way
what is important. If we open they would write a law review
by listing the other party’s article, presenting both sides
accusations against our instead of advocating for one
client, we establish a “guilty” side. Present your facts, then in
tone. Neither is a good first your Argument cite authority
impression, and we will spend and explain why those facts
the rest of our brief trying to and authority support your
make another, better, first position.
impression.

Keep the facts interesting, relevant, and favorable. Where the facts aren’t favorable, we
acknowledge them. When we do that, we establish credibility with the judge and create
empathy for our position.

PART 6: TELLING THE

JUDGE A STORY
Stories take a judge to the heart of our dispute. Litigators sometimes
They let the judge see our client’s plight, empathize resist telling stories
with our client, and want to decide for our client.
By telling a story, we say to the judge, “Your
because of some notion
Honor, here is what this case is really all about.” that “stories” are
Litigators sometimes resist telling stories because of frivolous. But think of
some notion that “stories” are frivolous. But think of it this way: No story, no
it this way: No story, no issues; no issues, no case.
issues; no issues, no case.

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WHAT IS A STORY?
A story provides context for applying the law. It is about people doing things or having
things done to them. Interpreting a statute is not a story. Alleging a wrongdoing is not a story.
Describing a principle is not a story. People generating and pumping raw sewage into a lake
and spilling wastewater into a sound are stories.
In the condemnation case below, the judge need not read a metes-and-bounds description of
the property before they hear the story of what happened there. Nobody acts in a metes-and-
bounds description. Instead of opening with the description, we could engage the judge with a
simple story:

EXAMPLE
In July of 2015, Kensington Investments purchased 27 acres west
of Ft. Lauderdale for $2,000,000. In August of 2017, Broward County
condemned the property and offered to compensate Kensington with
$5,000,000. Although Kensington had done nothing to improve the site,
the company claimed that in two years the property had appreciated
650% to $13,000,000.

In three sentences of story, the judge already wonders how any plot of land could increase in
value 650% in just two years, which immediately shifts the burden to Kensington.

HOW DOES STORYTELLING DIFFER FROM EXPLAINING?

An explanation contains no events. Nothing happens. At its deepest level, a story has a
beginning, a middle, and an end. Telling a story can be as simple as this:
In August, Proud Rhodie contracted with LMK to purchase silicon for $130,137.30. Ten
days later, LMK delivered the silicon.
Contracting and delivering are events, so we’re telling a story. If we open our brief by
explaining, nothing happens.

A SAMPLE STORY
Consider this Position Statement, not only does the lawyer open with an unnecessary formal
sentence—then present the other side’s case—but also nothing’s happened. A better way to
open the Pericles brief would be by telling a story that helps the judge appreciate our client’s
position.

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 DON’T WRITE THIS DO TRY THIS
Dear Ms. Horowitz: In July 2018, Complainant
Adeola Okafor, a shipping
This firm represents Respondent
clerk for Respondent
Pericles Packaging in the above
Pericles Packaging, shipped
referenced matter. Kindly accept
a customer’s 10-case order
this Position Statement as
“Overnight.”
Pericles’s explanatory response
to the Verified Complaint filed With each order Okafor
with the New York Division on shipped, she first had to
Civil Rights by Adeola Okafor. check the customer’s master
shipping instructions. That
Complainant Adeola
customer’s instructions
Okafor alleges that she was
authorized “Overnight”
discriminated against by Pericles
shipping only if the order
based on her race (African
was for five or fewer cases;
American) and her national
Okafor had failed to check
origin (Nigerian) in violation
the instructions, and the
of the New York Law Against
customer refused to pay for
Discrimination (“NYLAD”)
the overnight shipping.
(N.Y.S.A. 10:5-12a) and in
violation of Title VII of the Civil Because of Okafor’s mistake,
Rights Act of 1964 (“Title VII”). Pericles had to absorb a loss of
Complainant’s claims are totally $2,322.47. Pericles has a list of
without merit. 14 similar examples of Okafor’s
carelessness resulting in losses
for the company.

BEGIN WITH THE FACT THAT BROUGHT YOU TO COURT

Open with a story and a sentence like this to establish a tone advantageous to our client:
In July 2018, Complainant Adeola Okafor, a shipping clerk for Respondent Pericles
Packaging, shipped a customer’s 10-case order “Overnight.”
Keep telling your story exclusively with facts—no editorializing—letting the story build, until the
judge wonders about the veracity of the Complainant’s accusations. The next two sentences of
Pericles might be something like:
With each order Okafor shipped, she first had to check the customer’s master shipping
instructions. That customer’s instructions authorized “Overnight” shipping only if the
order was for five or fewer cases; Okafor had failed to check the instructions, and the
customer refused to pay for the overnight shipping.

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Now the judge knows that the Complainant’s carelessness has cost Pericles money, and the
judge reads on because he wants to know the degree of her carelessness.

FEEL FREE TO BEGIN IN THE MIDDLE

We need not tell a story in chronological order. We can pick the crucial moment that supports
our client’s case and begin there, then go back and fill in details. This technique works in fine
literature, good film, and well-written briefs: Rather than open with the day the employee was
hired, open with the day that they created loss for their employer and come back to the day
they were hired.
In Pericles, we’ve opened with one example of the Complainant’s carelessness; later in the
brief, we can tell the judge what the company does and how long the Complainant has worked
there. But in the last two sentences of our opening paragraph, we finish the point with:
Because of Okafor’s mistake, Pericles had to absorb a loss of $2,322.47. Pericles has a
list of 14 similar examples of Okafor’s carelessness resulting in losses for the company.
In one paragraph of storytelling, the judge now knows that the Complainant has been
consistently careless and cost Pericles thousands of dollars to cover her mistakes. How can the
Complainant now deny her own role in her dismissal?
By telling the judge a story at the beginning, we engage them in our client’s case, provide them
the context to apply the law, and take command of the case from the first sentence. At the
outset, we point the judge immediately toward the conclusion we want them to reach.

PART 7: CAPTURING
THE JUDGE’S IMAGINATION
To immerse a judge in our story, we must capture By using descriptive language
the judge’s imagination. By using descriptive
language that engages the senses, we invite a that engages the senses,
judge to see the events through our client’s eyes. we invite a judge to see the
» Begin with the moment the judge events through our client’s
needs to hear about first. eyes. Descriptions that do
» Give facts, not conclusions. not hit at least one of our five
» Give the facts that lead to your senses disorient us, because
conclusions; don’t bore the judge to
death.
we have nothing to grasp.

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If we are to capture a judge’s imagination, we must follow Rule 16 from Strunk & White’s The
Elements of Style: “Use definite, specific, concrete language. Prefer the specific to the general,
the definite to the vague, the concrete to the abstract.” The classic example from Strunk and
White pits two sentences against each other, the one on the left conclusory and abstract, the
one on the right specific and concrete.

CONCLUSORY AND ABSTRACT SPECIFIC AND CONCRETE

“A period of unfavorable weather “It rained every day for a week.”
set in.”

We can’t comprehend a period: It could be a minute, a month, or an epoch. We can’t picture

unfavorable weather: It could be a gale, snowstorm, or dust storm. But we can see and feel rain
every day for a week; we can hear it and taste it, even smell it. Descriptions that do not hit at
least one of our five senses disorient us, because we have nothing to grasp.

CONCLUSORY AND ABSTRACT SPECIFIC AND CONCRETE

“St. Olaf’s records reflect a “Doctor Doe opined that the
concern that the bony metastases bony metastases of cancer to
of cancer to her back was the Susan’s back was the cause of the
cause of the compression compression fracture, which was
fracture, which was later later confirmed by a bone scan.
confirmed by a bone scan.” The delay in diagnosis reduced
Susan’s five-year survival rate
from 85% to just 10%.”

The language in those records is the heart of the case. What does this mean? Is it a big concern
or a little concern? How conclusive? Reflection and concern are not facts, we can’t picture or
appreciate them; but the words in the records that reflect a concern are facts, and unless we
have an overriding reason not to use them, we should quote that language.

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 CONCLUSORY AND ABSTRACT SPECIFIC AND CONCRETE
Both the contractor and the Four miles long, two miles wide,
supplier recognized the difficulties Shemya Island lies at the extreme
inherent in supplying and installing western tip of the Aleutians,
equipment for a construction project 1,500 miles from Anchorage and
on a remote island in the Aleutians. only a few miles from Siberia.
It takes so much longer to deliver In January 2017, the year King
materials and to perform necessary delivered the engines, the US
work in a remote and inhospitable Navy selected Shemya to stage
location. a simulated amphibious assault
because the site provided 50-foot
seas and gale force winds, what
the commander of the Navy Third
Fleet described as “the most
difficult conditions imaginable.”
Even in August, the air is so cold
and the wind so strong they
create “horizontal icicles.”

The opposite of concrete is conclusory and abstract. Judges can’t picture conclusions like
remote and expensive; they can’t picture abstractions like defective merchandise and operative
entities. If we want the judge to understand the necessity of a limited liability clause, we must
allow the judge to envision—maybe feel and hear—the construction site.
Using concrete words and images, this paragraph captures the judge’s imagination and
persuades by conveying subliminally: Your Honor, we don’t know what the weather’s going to
be like six minutes from now, let alone six months from now. That’s why the limited liability
clause is not “unconscionable.”

© WOR D RA KE HO LDINGS , LLC 23

 CONCLUSORY AND ABSTRACT SPECIFIC AND CONCRETE
The defendant got out of his car When the defendant got out of his
and he was acting erratic. He car, he had to hold on to the door
appeared intoxicated. Everyone for support. He staggered over to
witnessed how under the influence where Jamie lay crumpled by the
he was when he walked up to my curb. Even though he was standing
client’s mother in the street. in one place, he was constantly
having to adjust his stance to
prevent himself from falling over.
His eyes were bloodshot and
glassy. His speech was slurred. He
had alcohol on his breath. From the
moment he got out of the car, he
talked a mile a minute, but nothing
he said was about the crash.

Conclusory language like acting erratic or appeared intoxicated is counterproductive because

it doesn’t give the listener any facts to go on. If the evidence is in your favor and the judge
would probably rule your way if given all the relevant facts, then they may be even more
frustrated with you. The judge needs to know what happened, not what you think.
The judge (or jury) will be deciding whether the defendant in your wrongful death case was
driving under the influence of alcohol, but they can’t decide for your client if they have no facts.
You must be reasonable and acknowledge a potential defense. But if you present it properly, it
will look like the other party is lying.

EXAMPLE
The defendant told the police at the station that he was acting that way
because he had hit his head. He agreed that he had been drinking, but
he said that he had only had two beers and wasn’t drunk. He blamed his
behavior on a head injury that he must have had from the crash. But there
was an empty bottle of vodka on the floor and he refused to take the
blood test. And then he refused medical attention.

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When you communicate in concrete and specific terms, the judge will form the conclusions
you want. They imagine horizontal icicles. They conclude that the conditions are
unpredictable and perilous. They imagine the defendant staggering and swaying over the
woman he just struck with his SUV, looking down at her crumpled body in a gutter and not
even acknowledging her. They conclude that the defendant had a total disregard for the
impact of his actions on a human life.

PART 8: TIGHTENING
& PROOFREADING
YOUR BRIEF
A polished document encourages a generous reading, so correct mistakes and cut superfluous
language. Assuming you’ve followed the earlier advice from this book, here are ten more ideas
to ensure that what we send to the court is our best work and enhances our reputation with
the judge.

TWO UNIVERSAL RULES

Proofread for Typos and Grammatical Slips

Fair or not, typos, grammatical slips, and incorrect usage make judges wonder, “If they can’t
get the simple things right, how can I trust what they say about the more complicated aspects
of this case?” These errors chip away at our credibility and send a message to the judge that
we don’t care about this case.

Never Use Tricks to Squeeze a Brief into a Word or Page Limit

Judges have seen every trick we can imagine and some we can’t. If we slightly adjust the
margins or the spacing or the font, the judge will notice. Many judges will then strike the entire
brief for not following the rules. Instead of using tricks, let WordRake help you meet word and
page limits at the push of a button.

© WOR D RA KE HO LDINGS , LLC 25

THREE EASY EDITING WINS

Avoid Abbreviations
If the judge has to pause to remember what your abbreviation stands for, they can’t pay
attention to your argument. Use abbreviations and acronyms only (1) when the judge will
recognize the acronym but not the written-out term or (2) when everyone uses the acronym
and not the term spelled out: IBM, ATT, IRS, NPR, NRA, NOW. But rather than call the “United
States Coast Guard” the “USCG,” call it the “Coast Guard.” Instead of reducing “Sauk-Suiattle
Indian Tribe” to “SSIT,” call them the “Tribe.”

Remove “Transition Words”

Occasionally, a transitional word at the beginning of a sentence serves a purpose, but only
if the word means more than, “Yeah, and this, too.” Examples of transition words that add
nothing to our sentences: therefore, consequently, accordingly, further, in summary, in fact,
moreover, furthermore, indeed. Skip the cheap transitions and rely on the simple tools: also,
and, but, or, however, nevertheless.

Search for the Word Indicate

This goes back to the problem of conclusory language. Indicate means to communicate in an
indirect manner, yet many lawyers use it as though it means the more direct said, promised,
stated, claimed, declared. If people say something, and they’re not speaking in euphemisms,
waving signs, or using body language, they’re not indicating:
Bauer indicated that he was not aware of the cost overruns and would further review
the budget.
This means that Bauer said something or did something in a way that led the lawyer (or the
client) to believe Bauer was not aware of the overruns. Someone else, like a judge, might
interpret Bauer’s “indication” differently. We often weaken our position by using indicated
rather than the strong, direct word we mean—“told Jameson.”

FIVE THOUGHTFUL CHANGES TO INCREASE IMPACT

Check the End of Each Sentence

At the end of our sentences, we often go beyond the point at which our reader already
understands. Examine the last few words before each period to see if you can delete them. If
those words form a prepositional phrase, the odds increase they are unnecessary.

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 DON’T WRITE THIS DO TRY THIS
But the facts of Armstrong are not But the facts of Armstrong are not
analogous to the present matter. analogous.

Pare Quotations
We never pull words out of context to change their meaning, but we make life as easy as we
can for a judge by quoting only the relevant part.

DON’T WRITE THIS DO TRY THIS

Hamilton is entitled to its As the prevailing party, Hamilton
attorneys’ fees and costs as “is entitled as a matter of right
a matter of right: “Except as to recover costs in any action or
otherwise expressly provided proceeding.”
by statute, a prevailing party is
entitled as a matter of right to
recover costs in any action or
proceeding.”

Cut Topic Sentences

Topic sentences are good for sixth graders learning how to organize and express their thoughts.
Once we learn how to do this, however, topic sentences only clog our paragraphs. A judge can
follow our thinking without our placing a bald topic sentence at the beginning of each paragraph.
Leave out the topic sentences. It’s a much faster way to communicate with our judge.

DON’T WRITE THIS DO TRY THIS

Mr. Gonzales’s time and Over two years, Mr. Gonzales
attendance were very poor arrived late for work almost 200
throughout his entire period of times.
employment. In approximately
two years, he was late for work
almost 200 times.

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In Each Sentence, Put the Important Point at the End
When we have two pieces of information in the same sentence, always put the main point at
the end. Open with the supporting point, then follow with the main point.

DON’T WRITE THIS DO TRY THIS

He never returned her money Despite her repeated requests, he
despite her repeated requests. never returned her money.

Change Gendered Language to Gender-Neutral Equivalents

Obviously, you’ll want to change things like manned to crewed, fireman to firefighter, but you
already knew that. It’s also important to write without assuming gender, and until about 150
years ago, everyone just used the singular they. Then some Victorians decided that the default
human was male and it was all downhill.
But more and more authorities recognize that what’s good enough for Shakespeare is good
enough for us; consequently, more and more style guides recommend the singular they.
Everyone in the courtroom probably uses it on the record without knowing it—even the
partner who lectures you against it. Using the singular they is the most natural solution and it’s
quite possible that no one will even notice you’re using it.
If the singular they still makes you uncomfortable, try:
» Substituting the gendered pronouns with the second person pronouns you and your.
» Replacing a gendered pronoun with the article the.
» Writing in the passive voice.
» Repeating the actor.
» Making the noun and all related pronouns plural.
» As we frequently do when referring to judges or lawyers, try alternating between she
and he.

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 BREAK THE HABIT #3
Submitting a brief shorter than what the court will allow signals the judge
we have a strong case and we know it well. It is the surest way to create
a good impression with a judge. Like the rest of us, most judges will turn
immediately to the last page of anything they have to read to see how
long it is. If a page limit is 20, over 95% of briefs will run 19 ¾ pages. If a
judge sees 16 or 17 on that last page—based on her experience of having
read thousands of briefs—she automatically will assume this brief will be
better than most. So she turns back to p. 1 with a good feeling about the
lawyer who wrote it even though she has yet to read one word.

PART 9: FINAL
SUBSTANTIVE
REVIEW
For most lawyers, our desire for perfection makes it difficult to recognize when our work is
done. If that describes you, then this list is an effective way to determine whether the brief is
ready for the court. Ask these 20 questions. Have I:
1. titled each section of my brief with a single word?
2. dropped the formal opening, “Defendant respectfully submits”?
3. started with my own case?
4. addressed both sides reasonably?
5. spelled out acronyms?
6. stated my position, why the law and evidence support it, and what I want the judge to
do?
7. opened my fact statement with a fact that is interesting, relevant, and favorable?
8. told the judge a story?
9. discarded conclusory words and arguments in my fact statement?
10. removed extraneous facts?
11. written in the concrete?
12. checked my facts for “opinion” words, like difficult, confusing, lengthy?

© WOR D RA KE HO LDINGS , LLC 29

 13. deleted unnecessary words, nominalizations, and passive voice?
14. removed unimportant names, dates, and numbers?
15. avoided self-serving words like clearly, obviously, well-settled?
16. dumped the fightin’ words, like outrageously, incredibly, amazingly?
17. pared quotations?
18. asked “Why?” or “So what?” after each sentence of argument?
19. proofread for typos, redundancies, clichés, and legalese?
20. made my brief 15% shorter than the page or word limit?

The above questions themselves are simple, but a “no” answer effectively reveals a weakness
that your readers will quickly see. It’s your last chance to get your brief right and make it the
best it can be. When you can answer “yes” to each of the 20 questions above, you’re ready to
submit your brief to your supervisor or the court.

30 © WORDRAKE HOLDINGS, L LC
CONCLUSION
Using WordRake’s approach to brief-writing will strengthen your case and increase your
chances of winning. The WordRake method will also enhance your reputation with the judge.
Using our method, you will have taken control of the case by establishing the issues, found and
communicated facts in a way that the judge can envision, used your facts to lead the judge to
the right conclusions, and increased your chances of the judge’s ruling in your favor.

USE WORDRAKE TO CRAFT THE PERFECT BRIEF

If you’ve been working for days or weeks and believe you’re ready to submit your brief, run
WordRake on your brief to tighten, tone, and clarify your writing. Then read through your brief
once more, putting yourself in your reader’s position. If you’re confident that your work is
complete, it’s time to compare it to the checklist in Part 9.
WordRake is editing software designed for lawyers by lawyer, legal writing expert, and New
York Times bestselling author Gary Kinder. It runs in Microsoft Word and Outlook. Like an
editor or helpful colleague, WordRake ripples through your document checking for extra
words, cumbersome phrases, clichés, and more. Suggested edits appear in the familiar track-
changes style. Editing for clarity and brevity has never been easier.
WordRake will help you meet word limits and enhance Associate Reviews. And at $129 to $199
per year, even associates can afford it. Learn more about WordRake at www.WordRake.com.

AVA I L A B L E FO R MAC O R WI ND OWS

© WOR D RA KE HO LDINGS , LLC 31

32 © WORDRAKE HOLDINGS, L LC