Lawyers should simplify their documents as much as possible. Always ask: “What is really important for the reader’s purposes? Does the reader need to know this?”
Delete details liberally. Each detail you include must serve some rhetorical or analytical purpose; it must further your argument or theme.
When you do include a detail, you need to integrate it into your argument, narrative, or theme. Readers have a hard time remembering isolated details. Your broader argument or narrative should allow readers to see how each detail matters.
Consider the following examples. Do the highlighted details advance the brief’s argument or theme?
Here’s a good example (from a criminal-defense appellate brief):
Confronted with a brand-new and untested statutory regime in Florida, Farha turned to outside counsel—an experienced Florida Medicaid lawyer—and the company’s internal lawyers to guide WellCare’s implementation of the newly enacted 80/20 Statute.
In that example, the brief’s theme is that a legal tripwire caught the defendant Farha by surprise. Farha did not set out to engage in wrongdoing; instead, he unwittingly ran afoul of a brand-new and untested law codified in a newly enacted statute. Indeed, Farha was caught up despite having relied on experienced outside counsel as well as the company’s internal lawyers.
And here’s an improvable example:
The interest of the lessee in the Lease below the top of the Onondaga formation were retained by Quaker State Oil Refining Corporation (“Quaker State”) in an exception and reservation found in an Assignment dated January 14, 1991recorded in Venango County Book 933, page 191.
Consider: does the judge care about the precise date of the assignment? Does the judge care about the book and page number of the county records in which the assignment is recorded? Is the judge going to send her clerk to the county recorder’s office to hunt for this document? Probably not, so these details should be omitted. If there is a reason to include them, they should be put in a footnote.
Unless their relevance is clear or they are seamlessly integrated into a narrative, details may cause the reader to stumble because they will be trying to figure out why they should care about or bother remembering the detail.
Simplify discussions of precedent cases.
When analogizing to or distinguishing a precedent case in a brief or memo, avoid providing a narrative of everything that happened in the earlier case. The reader isn’t looking for a general-purpose summary or recital; this isn’t a 4th-grade book report. Instead, the reader (typically a judge or partner) wants to know how the earlier case should influence the reader’s decisions about the present case. Focus on the reader’s purpose in reading your brief and tailor each paragraph to that purpose.
Along those lines, most of your discussions of precedent cases should be tied to a legal proposition that you are trying to establish. If a fact from the prior case is unrelated to the proposition and otherwise nonessential, omit it.
Photo credit: Sarah Dorweiler, Evano Community
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Ryan McCarl teaches Advanced Legal Writing and researches artificial intelligence law and policy at the UCLA School of Law. He is also a partner at the law firm Rushing McCarl LLP. You can follow him on LinkedIn and Twitter as well as his personal blog.