By Sherry Karabin
In the movies, cases are often won or lost based on an attorney's dramatic arguments in the courtroom, but these days many lawyers say the battleground has shifted to the written word, with more casesbeing decided by judges based on the motions and briefs they receive.
Chicago Lawyerspoke to lawyers, judges and teachers to see when the tide first began turning and what techniques are the most effective in creating persuasive documents.
The change in focus
Hinshaw & Culbertson partner Joel D. Bertocchi has been practicing since 1987. A former assistant U.S. attorney in Chicago and former Illinois Solicitor General, these days his job includes handling appellate work.
While being adept at the written word is key to his job, he said more emphasis has been placed on the craft at all levels of the profession.
"When I first started in the U.S. attorney's office, writing was considered grunt work; something that you had to do in order to get to trial," Bertocchi said. "Briefs were generally unremarkable, and viewed as a necessary evil.
"As cases became more complex, and grew larger, judges became more interested in disposing of them in writing. This was especially true on the civil side."
He said the changing nature of cases meant judges were required to spend more time, but litigants also became concerned about the rise in costs.
As a result, he said, "in the ’90s, I not only saw the importance of writing increase, but I also started seeing a growth in opportunities to work on more interesting trial court motions and appellate briefs. This gave me the chance to work on my skills and get better.
"If you have a commercial case today, there will always be at least one or two attempts to resolve things with a motion to dismiss or summary judgment or both, whereas this might not have been the case 20 years ago," Bertocchi said.
At the beginning of his career, Bertocchi said his work was often based on what he believed lawyers sounded like because of what he read in judicial opinions written long ago when "legal prose was more encrusted with clauses, and arguments in court went on for days."
Today, he said, he tries to be "more direct and lively" and to take a "Hemingway-like approach," getting to the point quickly and targeting his words specifically toward the audience that he is trying to persuade.
"Judges are very busy and federal courts now have word limits. You don't want to be goofy or eccentric, but you want your arguments to stand out in their minds. I try to include a nice turn of phrase that will separate my brief from the large number that they read and get them to the point where it is a yes or no question, even if the matter is complex."
Timothy S. Bishop, a Mayer Brown Supreme Court and appellate litigation group partner, also said more cases settle today based on the strength of motions to dismiss and other pretrial motions, since the high cost of litigation has become a "disincentive" to go to trial. As a result, he said there is more at stake in being able to write a persuasive argument.
"It used to be you did not expect to win on pretrial motions," Bishop said. "Pleading standards in the 1970s had been somewhat lax and classes were readily certified."
Bishop said this began to change in 1995 when Congress enacted the Private Securities Litigation Reform Act, which was followed in 1998 by the Securities Litigation Uniform Standards Act.
"More recently, the Supreme Court has expanded more demanding pleading standards to all types of lawsuits," Bishop said. "As a result, you have a real chance of disposing of a case."
On the class certification side, a new rule (Federal Rule of Civil Procedure 23(f)) was adopted in 1998 to allow appeals of class-certification decisions, which Bishop said resulted in greater appellate and Supreme Court supervision of class-certification standards.
He said additional rule amendments were made in 2003, "making it clear that many of the lax class-certification practices previously adopted by the trial courts were no longer acceptable.
"It is now very possible to defeat class certification, leaving plaintiffs to proceed individually, if at all," Bishop said.
Becoming more vocal
Appellate attorney Nancy G. Lischer said the ability to write persuasively has become even more important than the ability to make a convincing oral argument, particularly because courts more frequently decide appeals without argument.
"The courts have become more vocal about their expectations," said Lischer, a partner at Hinshaw & Culbertson. "They have even gone as far as to dictate the format and production of briefs and these briefs need to be concise and to the point.
"The U.S. Court of Appeals for the 7th Circuit has a link on its home page called 'Painting with Print.'
"Other circuits have referred to it as a good source for attorneys to follow."
Published in 2004, "Painting with Print" discusses how a persuasive legal document must be "visually effective" as well, offering attorneys guidelines on layout and design, including font size, headings, contrast and alignment.
"One of the things courts have said on a number of occasions is that lawyers ought to use photos in briefs to help cut down on words," said Collins T. Fitzpatrick, circuit executive for the 7th Circuit. "For example, an attorney might take 1,000 words to describe a piece of property and could instead use about 200 if a photo of that property were included.
"Lawyers need to figure out how best to present their cases to someone who does not know the facts," Fitzpatrick said. "Judges read a tremendous amount for every case. Whatever an attorney can do to make the brief elucidate whatever the points are and make sure they are not buried will help his case and the judge.
"The point of 'Painting with Print' is that lawyers not only need to write it in the least complex way, they also need to present it like that. Imagine if a brief had all block text, you would get lost trying to read it," Fitzpatrick said.
When writing a brief, Lischer said she considers presentation, including not shrinking the margins and creating headings and subheadings, to help organize topics by subject, in easy-to-read fonts.
"I don't think a case can be won or lost based on font size, but certain fonts are more readable," Bertocchi said. "It used to be that attorneys used smaller fonts to cram in as many words as possible, but now that many courts have word counts there is no advantage to doing this.
"Judges read for a living, even trial judges, so they are the consumers so to speak, and if you are trying to sell an argument, the customer is always right."
Alyssa M. Reiter, who chairs the appellate practice at Williams Montgomery & John, said technology is partly the reason for the increased need to hone writing skills.
"When I first started practicing most lawyers did not have computers at their desks, now everyone does," Reiter said. "Years ago, people may have picked up the phone to communicate things that are now written in an e-mail.
"Because of technology, I think that there is often an increased expectation of how quickly we should respond to matters. You might not have the luxury of drafting something and later reviewing and revising it. So, it is more important than ever before that good writing be one of your skills."
Husch Blackwell partner Donald J. Mizerk, who handles intellectual property issues at the trial and appellate court levels, said the quality of legal writing has decreased over the last 20 years.
"One reason is the way people communicate," Mizerk said. "E-mail and instant messaging have caused people to get out of practice when it comes to writing complex ideas. There is also more pressure on attorneys to bill, especially young associates, and this leaves less time for people to work on their craft.
"Twenty years ago, when you hired law students from the big schools, you could count on decent writing, now that is less frequently the case because they are carrying over their bad habits from tweeting and editing on screen."
"The problem with e-mail is that so many words as well as concepts are abbreviated, which helps to shroud their meaning and the writing is often careless," said E. Leonard Rubin, of counsel at Querrey & Harrow, who has been practicing for about 40 years and teaches at the University of Illinois College of Law and The John Marshall Law School.
"I think that this style has carried over and caused law students and others to put less value on the need for clarity."
He said other issues include punctuation problems because of the lack of punctuation in e-mails, careless paragraphing, use of run-on sentences and failure to properly footnote since footnotes don't exist in e-mails.
"In my own writing, I work to be clear and eliminate redundancies," Rubin said. "I always try to keep it interesting, using adjectives, adverbs and metaphors, while following the rules of grammar. Since I am a rapid writer, I go back and edit and re-edit myself."
The importance of being a good writer has remained constant over the years, Rubin said.
"It is not only necessary to write strong briefs, but attorneys must do the same with contracts and even letters to their adversaries."
Perfecting the craft
Bertocchi said his work begins long before he puts anything on paper.
"I think my arguments through from beginning to end before I start writing. I used to just wait and see where I ended up, now I take a more direct route."
He recommended preparing an outline and keeping the goal of the document in mind throughout. While he said legal writing classes hold importance, he stressed that no substitute exists for experience.
"One book that I read makes the point that writing the first draft means you are 50 percent done," Lischer said. "At that point, you should take a step back and wait a few days and then come back to the document and read it with a fresh eye."
She said computers make writing easier, but they also make it tempting to "just keep writing." She said she prints her briefs and then makes her edits on hard copy.
"As an appellate attorney, the record defines what the issues are. I usually focus on the best issues raised. For the statement of the facts, I craft a chronological story that includes the relevant facts and then I apply the law to the facts in the argument section.
"If I am not familiar with the law, I look at the trial court's briefs, which define the issues," she said. "After that, I do in-depth research, using the trial lawyers' findings only as a starting point and expanding it, nationally if the case calls for it. Once I've done the research, I apply the law to the facts. I almost never have writer's block, so I don't use an outline."
Since most pretrial briefs have short page limits, Bishop said, "every word counts and these briefs have to be very easily digestible." As a result, he makes sure to eliminate "long sentences and paragraphs" and any convoluted phrases.
He always includes a table of contents.
"I want to see the headings flow together and tell a story when they are read sequentially. It really has to sing; if not, it's back to the drawing board," Bishop said.
"The biggest challenge is writing about a highly technical area of the law for a judge who does not specialize in it. It has to be written in a clear way that makes it easy to grasp the technical concepts. Typically when I handle tax or ERISA cases, I work with lawyers who are specialists. Between us we can produce briefs that are both technically correct and easy to follow."
Mizerk starts with a basic outline that includes three or four points and breaks those points into subgroups.
"I figure out how to line up my arguments and how they build on each other. The first paragraph of each major argument sets up the sentences that follow," Mizerk said.
"You have to be blatant and blunt in intellectual property writing. Legalese is a sure-fire way to have judges miss your points.
"I think the most difficult situation is responding to a poorly written brief," he said. "You must first discern what the other side is actually arguing and then decide whether to just knock it down or say it for them and then knock it down, or somewhere in the middle. You don't want to do the other side's job for them, but you may have no choice in order to write a clear response."
Linda T. Coberly, one of the founders of the appellate and critical motions practice at Winston & Strawn, said the key to a good brief is organization.
"I use clear topic sentences and point headings, so the reader can see the entire structure of the argument. Introductions are very important. I always try to create an introduction that sets the tone for the brief and explains in the first paragraph why my client should win. That means getting rid of a lot of unnecessary verbiage at the beginning," Coberly said.
"For example, it used to be customary to see a lot of procedural stuff in the first paragraph of a brief. I find that unnecessary and a missed opportunity to persuade the reader."
She said lawyers need clear goals in mind before beginning to draft and they must keep in mind what expertise the audience may possess.
"If I am writing something for a judge who has presided over a case for some time, for example, I may reduce the amount of background information that is given."
Coberly said computers help make editing easier, but she questioned their impact on legal research.
"Doing research with word searches may be quicker, but it often brings up cases that are unhelpful, even if they sound like they are making your point. It might be tempting for people to cite cases without taking the time to read them through and to be sure their outcome is favorable to the position or legal ruling the writer is advocating."
A few lessons
U.S. District Judge Robert M. Dow Jr., said it is no secret that judges have a heavy docket, making it important for attorneys to "cut to the chase as quickly as possible. If the points being made are obscured by a lot of extraneous clutter, it makes it very difficult for a judge who is trying to understand the arguments," Dow said.
While courts give different length constraints (in the Northern District of Illinois, there is generally a 15-page limit on briefs), Dow said lawyers should try to summarize their case right from the start and be sure the summary includes the most important points.
"If there is a case that supports a lawyer's proposition that I am bound to follow, I want to know about it right away. Likewise, if there is a controlling case that supports an opponent's views and the attorneys cannot explain why it should not apply, they are probably doomed."
Dow said the use of inflammatory language should be avoided except on the rare occasion when it is "truly appropriate. At the end of the day, it is not any more persuasive to read a brief that disparages the other side," Dow said.
"I look for a well-organized brief that marshals the appropriate authorities, applying them to the situation at hand in a well-written and concise manner," said U.S. District Judge Gary Feinerman.
"If the first paragraph or two summarizes the issues and arguments, telling me how the motion should be resolved, that is really helpful. Headings are important because they provide sign posts as to where the brief is going and allow for easy points of reference."
He said what convinces him the most is reading a brief, then doing his own independent research and finding "precisely the same cases that the brief cited. In addition, I like to see the brief directly address the potential weak points in the party's argument and the opponent's strongest arguments," Feinerman said.
"When I see a brief try to bury an opponent's argument in a footnote, I'm immediately skeptical. Is the opponent's argument truly worth only a footnote, or is the brief trying to bury an uncomfortable and difficult point? I read the footnotes closely to find out, and if the brief gives short shrift to an opponent's strong argument, I conclude that the opponent is most likely right."
Feinerman said he recommends minimizing the use of footnotes since they can prove distracting. He said longer briefs do not necessarily make for more effective briefs, and added, "if a brief accuses the opposing counsel of intentionally lying, the brief had better be right."
Cook County Associate Judge Rita M. Novak said briefs need to present the "big picture," as well as the context of the dispute, with the attorney walking the court through the thinking process by going from the general to the specific.
"Take a complex commercial contract, for instance. It needs to be clear what the parties were aiming to do, the backdrop in which it was crafted as well as the terms that are at issue," Novak said.
"The active voice is very important. It can be very confusing when the brief uses the passive voice, leaving the court to wonder what action took place and who took it. Legal writing should define terms that the average person is not familiar with. This is especially true in specialized areas, commodities or financial transactions, for example."
Attorneys should also avoid using "flowery language," Novak said.
"One of my pet peeves is the use of the word, 'clearly,' when really the writing is not clear at all," Novak said. "It's important that the judge knows exactly what kind of relief a party is seeking. This is especially important on motions, where the entire case may not be won or lost, but where a significant issue may be resolved and some relief given that moves the case forward."
She said the 7th Circuit's "Painting with Print" offers some good lessons, including the use of headings written "precisely and concisely to mark the important points in a brief."
"We judges do a great deal of reading and we are handling any number of cases on a particular day," Novak said. "Then, once the hearings, or the initial reading of the brief, are over, we often rely on the briefs again to write a decision. The headings serve to remind me of the more detailed content that I previously read, just as they provide a road map for what I am about to read."
Novak said another important tip contained in the document is avoiding "capital letters to get the court's attention. A block quote of capitals has precisely the opposite result. I have to struggle to pay attention and often have to re-read the words multiple times to get the meaning of such passages."
Many law schools now offer more classes and specialized classes to give students an edge in developing their writing skills. Those who attend Northwestern University School of Law, for example, can choose an appellate advocacy concentration.
Susan Spies Roth, the school's director of academic and professional excellence, said she often works with students to help them improve their work.
Overall, Roth said, she reminds students that legalese has fallen out of favor and that "layman's terms are easier to follow, more precise and ultimately more persuasive; three words are better than five and one word is better than three; and that concision improves clarity, aids reader comprehension and heightens persuasive effect."
"We all have romanticized notions of what a legal career is like," she said. "The challenge for many students is to try and reconcile those notions with reality and their writing needs to reflect this reality by embracing the more simplified and direct writing style that judges and others have come to expect."