There’s a new book on my shelf. I’ve placed it right next to McFadden’s book on Georgia Appellate Practice, Aldisert’s Winning on Appeal, and Butterick’s Typography for Lawyers. That book is Ross Guberman’s Point Made: How to Write Like the Nation’s Top Advocates. Unlike many books on the subject, this one takes legal writing from the top appellate advocates and breaks their work down into techniques you can immediately begin applying to your legal writing.
I also found that many of the basic techniques also work well for oral presentations in court. Even better, this book is more affordable than most legal publications. You don’t have to go through West or Lexis. You can buy this one at Amazon for an affordable price. Ross Guberman was kind enough to let me interview him about his new book, which you will find below in a Q&A format.
And you will find below a basic overview of his book along with a couple of workflow tips for how to write excellent briefs even if you are a busy solo practitioner or a busy public defender. Even if you already have his book, you’ll find in this interview even more tips, including how to write excellent brief even if you have a huge caseload.
Why do we need another book on brief writing? What distinguishes your
book from the selection of books out there on this topic?
I divide the enterprise into 50 techniques, each brought to life through bite-sized examples from some of the most famous lawyers and cases in the land. I included whatever I thought was useful in the existing books (I’ve devoured them all many times over), but I offer new takes on familiar challenges, such as a four-step method for writing a preliminary statement, a handful of devices for using examples and analogies, and dozens of tips for adding interest to your sentences.
You take an empirical approach to your book. What made you arrange the
book this way, and how did you select the examples you chose?
So many people talk about their own theories of brief-writing. I wanted to try something more scientific: identifying a few dozen of the best advocates and then nailing down how their writing differs from other lawyers’ writing.
I turned 50 of those differences into “you can do this, too” techniques. Then I combed through recent motions and briefs, searching for interesting examples that made sense in isolation. I made sure to include snippets from many practice areas and from many types of motions and briefs.
Frankly, I probably spent more time than was necessary piling up potential excerpts, but I’ll try to be more efficient in my next book!
Given that lawyers are all, to some extent, professional writers (particularly appellate lawyers), why do you think that the overall quality of writing is not better?
Ah, the age-old question: Why do most lawyers think that they themselves write well but that “lawyers in general” write poorly?
Let me suggest two possible answers.
First, the apparatus of a brief—the citations, record cites, quotations, parentheticals, and defined terms—can easily mask flaws in the prose or the logic. Reading a brief stripped of all that mumbo-jumbo can be as painful as standing naked in front of the mirror—but it’s just as revealing.
And second, although most lawyers have many years of formal and informal training in writing, few of us learn how to write vivid, punchy, and flowing prose about dry or abstract issues.
I teach law students in a clinical appellate setting as an adjunct
instructor. Much of my work involves correcting habits that students
have already learned. I typically emphasize shortening briefs,
simplifying sentences, and making the work read more like a story than
a lease agreement. Do you find similar habits in your work, and how do
you combat it?
I sometime liken legal writing to basketball. Just as both grade-school players and NBA players need to work on their ball-handling, so should both law students and Supreme Court Justices work on their sentence structure.
The skills you list–writing concisely, streamlining sentences, spinning a narrative—are life-long pursuits for anyone who cares about writing, legal or otherwise.
That’s why I’m always amused when young attorneys say to me, “But I’ve already studied legal writing in law school.” You’ll never hear such a claim from any of the profession’s most-renowned writers—they’re often their own harshest critics.
What is the single most important lesson you believe a reader should
take away from reading your new book?
That a brief is just another form of explanatory or persuasive nonfiction writing. What works in a brief is like what works in an essay that changes your mind or in a long magazine article that holds your attention.
The trick is to break down “what works” into actual techniques you can apply in practice. I’ve given you fifty such techniques.
What’s the best way to integrate the lessons from the book into daily
practice? Is the book better read cover to cover or better used for
People tell me that the book works either way, and I designed it so it would. But if you’re trying to figure out your theme of the case, turn to Part One. If you’re reworking your fact section, turn to Part Two. If you’re having trouble dealing with the case law, turn to Part Three. If you’re editing for style, turn to Part Four. And so forth. Or search the index for lawyers you like or for cases you recognize.
Even though I have been doing this stuff for a decade now, I found
some if your lessons at the beginning the most helpful. I was
reading your book in court a few days ago and used the Brass Tacks
technique to start my hearing on a motion for out of time appeal. In a
few short words, I told the judge what I wanted, articulated a few
reasons why I should get it, and outlined the evidence he would hear.
The practice is often not to even give an opening for these types of
hearings. Judges often say they don’t want to hear openings. But I
found that the brief opening focused the whole proceeding and probably
cut down on the relevance objections. I think I am not alone in saying
that advanced appellate practitioners often need to hear the basics
just as much as beginners.
Well I’m very happy to hear that the technique worked, and I hope you won your motion!
Many seasoned practitioners go off on tangents early in their briefs and arguments, assuming that the court has more knowledge or more interest than is likely the case. The techniques at the beginning of the book—like Brass Tacks and Short List—give judges the “context before detail” that so many of them crave: How did the dispute arise? What do you want me to do about it? And why should I do it?
You have cited excellent briefs from the best appellate lawyers in the
world. We see how good their writing is. And I can anticipate a common
excuse from lawyers who are resistant to change. And that excuse is
that they are just too busy and don’t have the time to step up their
game. Yet, I imagine that the lawyers behind the excerpts are even
busier than we are. Can you say something about what their work habits
are. How do they manage to write so well with such busy practices?
Writing well does not take more time than writing poorly; you just need a battle plan in place before you turn on your computer. How are going to churn out the introduction? How do you spin the facts into a coherent narrative? How can you use your introduction to generate the headings, and then the paragraph openers, and then the integrated case discussions and transitions? How can you use an examples or analogies to make your point stick? How often are you going to write a short sentence that starts and stops on the same line on your computer? And so forth.
On the style side, it also helps to have a lot of automatic edits at your fingertips. Change “however” to “but,” “moreover” to “and” or “also,” and “due to the fact that” to “because” or just a colon. Little tweaks make a big difference.
Once you have such a system–a set of standards that guide you when you write–your first draft can be pretty darn good, at least structurally and analytically.
The old saw about “Revise, revise, revise” is misleading. Long-term suffering may work for the authors of literary novels, but brief-writers are better off doing most of the heavy lifting on the front end.
How, for instance, would a busy public defender find the time to write
a brief that could make it into the next edition of Point Made? How
would a solo practitioner?
I am the first to admit that many lawyers write just as well or better than the 50 advocates in my book.
My original plan, in fact, was to identify the nation’s greatest brief-writers, whether they were nationally known names or not. I gave up only after realizing that the task was impossible, at least for me.
Many public defenders and solo practitioners write beautifully. The woman appointed to defend the Tucson shooter, for example, is known to be a superb advocate who keeps a low profile, and I’d like to track down some of her briefs myself.
What I recommend for those who are extremely busy is that they focus on Parts One and Three of Point Made, the sections that offer step-by-step time-saving guides to preliminary statements and arguments. If the facts matter a lot, check out Part Two as well. Part Four, on style, was the most fun for me, but I admit that making the style interesting is less important (and more time consuming) than making the argument persuasive.
Tell me a little bit more about your business. When you aren’t busy
writing books, what do you offer lawyers through your business?
I spend most of my time working with lawyers and judges directly, mostly in group settings through seminars and workshops, but sometimes one-on-one. On any given day, you’re most likely to find me at a large law firm, but I’ve worked with public defenders and prosecutors, solo practitioners and the Justice Department, and all manner of federal and state agencies.
I’ve also worked with lawyers all over Europe and Asia, and I’ve even presented during a CLE cruise to Alaska!
My company, Legal Writing Pro, offers programs on standout legal writing, brief-writing, transactional drafting, marketing writing, writing for publication, IP writing, editing, and whatever else my clients need.
In a way, there may be more writing in this age than ever before. Yet,
the form is more informal than abbreviated than ever. What are the
challenges to writing well in the age if the text message and the
tweet. Have we lost or are we losing a legal culture where lawyers
should even attempt to write long, flowing sentences?
I probably ruffle some feathers with the book’s 38th technique: Freight Train: the long cascading sentence.
Lawyers have become obsessed with the “short sentence” mantra, forgetting that an occasional long balanced sentence is one of the greatest tools a writer has. I include in the book a 73-word sentence from none other than John Roberts, and I defy anyone to break it into choppy chunks.
Variety in sentence length is the key. No one wants to read “See Spot Run” for forty pages, nor do most of us want to read nothing but tweets all day.
Who do you think the best writers on the bench are?
Good question, as my next book is about how to write like the world’s greatest judges!
Great opinion-writing is tougher to pin down than great brief-writing. Judges have many potential audiences, and they tell me that they’re sometimes not sure which one they should be writing for: the parties in general, the losing party in particular, the parties’ counsel, counsel in future cases or appeals, the media, legal academics, law students reading casebooks, future appellate judges or panels, or the clerks of those future appellate judges or panels.
What do you and your readers think is the right answer?
Let me give you an example of why this question matters. If you think your main duty is to explain yourself to the losing party, you might lean toward softening the blow by reasoning through the issues before delivering the bad news at the end. But if you think your main audience is, say, lawyers in future cases, you might start with the holding and go from there.
Another issue: although it’s hard to imagine a brief being too interesting, at a certain point an opinion can be so self-conscious that the court looks like it’s mocking the litigants. So I’m not a fan of opinions written in rhymes or opinions riddled with baseball metaphors. And I’m also turned off when I read haughty and sometimes vicious language attacking lawyers and litigants who make stupid but unintentional mistakes.
All that said, I do think some judges write beautifully. On the appellate side, everyone talks about Kozinski on the Ninth Circuit and about Posner and Easterbrook on the Seventh, all of whom have a wonderful flair for language. But let me name a sleeper Seventh Circuit Judge: Diane Wood. (Disclosure: all three Seventh Circuit judges have taught at my alma mater, The University of Chicago Law School, though I don’t know them personally). Her writing is just as vivid and interesting, and she maintains a respectful tone toward the parties and their counsel.
Third Circuit Judge Ruggero Aldisert is a star as well.
As for district court judges, I like Jed Rakoff of the Southern District of New York, among others.
I do love Chief Justice Roberts’s writing, though not as much as I love Supreme Court Advocate John Roberts’s writing. And keep an eye on Justice Kagan: in her first opinion on the Court, she stood up well to Justice Scalia, a masterly but controversial writer himself.
I could name so many others, but these judges are among the select few who explain their opinions with clarity and s pizzazz.
I’ll make a deal with you, Scott: If you or your readers want to nominate any other judges, particularly in the state courts or lower courts, let me know at firstname.lastname@example.org.
In the meantime, thank you very much for this opportunity to discuss writing and Point Made.