About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

38 U. Tol. L. Rev. 1113 (2006-2007)
Effective Brief Writing Despite High Volume Practice: Ten Misconceptions That Result in Bad Briefs

handle is hein.journals/utol38 and id is 1127 raw text is: EFFECTIVE BRIEF WRITING DESPITE HIGH VOLUME PRACTICE: TEN MISCONCEPTIONS THAT RESULT IN BAD BRIEFS Sarah E. Ricks* and Jane L. Istvan** I. INTRODUCTION T HERE is an art to writing effective briefs, and each brief is different. But many ineffective briefs contain the same mistakes, regardless of the brief s subject matter or the briefs intended judicial audience. One recent survey revealed that more than 93% of the responding practicing attorneys and judges (both state and federal) believed that the briefs and memoranda they saw were marred by basic writing problems,' including a lack of focus (76.1%), failure to develop an overall theme or theory of the case (71.4%), and failure to be persuasive (66.4%).2 Another recent survey of 355 federal judges found that judges are critical of lawyers' inability to use relevant, controlling authority to their advantage.3 The demands of a high volume law practice contribute to these drafting errors. A heavy caseload allows little time for the brief writer to achieve the critical distance from the document necessary to edit and revise effectively. In addition, many attorneys have misconceptions about the role of a judge that lead to basic drafting errors. Because judges want the result of a case to turn on the merits, rather than on which party hired the better lawyer, they sometimes reach out in cases where the briefs are poorly organized and opaque to independently divine the applicable law and record facts. However, it is not the judge's job to sift through the advocate's possible arguments to determine which argument is strongest or to figure out how the law applies to the facts of the case. * Clinical Associate Professor & Co-Director, Pro Bono Research Project, Rutgers School of Law-Camden. J.D. Yale Law School 1990, B.A. Barnard College, Columbia Univ., 1985. Thank you to the Rutgers-Camden Clinical Faculty Scholarship Workshop for helpful comments on an earlier draft. ** Senior Attorney, Appeals, City of Philadelphia Law Department, J.D. Yale Law School 1992, B.A. Univ. of Virginia 1988. 1. Susan Hanley Kosse & David T. ButleRitchie, How Judges, Practitioners, and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study, 53 J. LEGAL EDUC. 80, 85 (2003). 2. Id. at 85-86. 3. Kristen K. Robbins, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 LEGAL WRITING: J. LEGAL WRITING INST. 257, 264 (2002) (The judges seem to think that lawyers can find the law, but they are not doing enough with it; the legal analysis in their briefs is mediocre.). 1113

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most