Throw in the Kitchen Sink and Other Uncommon Advice for More Effective Briefs

Does it seem like every guide to effective brief writing repeats the same ideas? “Be succinct, employ simple verbiage, avoid legalisms,” etc. Well, first and foremost, we’ve all heard these tips and advice ad infinitum and, needless to say, would no more breach or contravene such prescriptions for literary virtuosity than we would fail to agree that prolixity is communis hostis omnium! So with that understanding, I offer a few suggestions which are not so commonly repeated.

i. The kitchen sink. Yes, you should limit the brief to your one or two best arguments when you are sure the Court will regard your other arguments as considerably less persuasive. Often, however, I have been unable to discern this, any more than I could say whether my peach cobbler will win at a pie contest when I don’t know the pie judges’ preferences -- or even if they like peach cobbler. Many times, I prevailed on an argument I had rated my third or fourth best and which, had I reflexively adhered to the “no kitchen sink” principle, I would have omitted. If you think the argument has some merit, find a way to give it its own point heading and squeeze it in.

ii. The Opening. With rare exception, open with a terse statement of the nature of the dispute. “This is an insurance coverage dispute,” for example. The reader’s first impression likely will be that you are giving it to them straight, with objectivity. Opening with “This is a case of outrageous and uprecedented misconduct” may or may not grab the reader’s attention, but what else can the reader thereafter think except that the writer may be blinded by partisanship and even animus?

iii. Short forming proper nouns. No law requires that the short form of Microsoft, Inc. be introduced by a parenthetical; i.e., “… defendant Microsoft, Inc. (“Microsoft”) …” You are free to simply state “Microsoft” the second time its name comes up.* Your reader will know what you mean. Similarly, absent a specific reason why confusion might arise, Suburu Motors, Inc. can simply appear the second time as “Suburu,” Javier Ortiz as “Ortiz,” and International Business Machines, Inc. as “IBM.”

iv. Abbreviations. Relatedly, unless your client trades under a set of initials, such as IBM, strive not to use them to refer to parties. The Olney Farm Authority sounds like a cordial group of folks if short formed as “Olney Farm” or “Farm Authority,” whereas “the OFA” may to some connote a vaguely sinister or at least a coldly corporate enterprise. Leave the initials, if you must use them, to describing one’s opponent.

v. Block quotes. Use sparingly, of course, but when using them employ an introductory sentence stating the import of the quote, such as: “The Policy’s Water Exclusion is a narrow exclusion that provides a broad exception for ensuing loss, as follows: …” The reader may well forget the quote (if it’s read at all), but remember your introduction of that quote.

I’ve got many more bits of advice as I’m sure my readers do. Feel free to share and discuss!

* I believe Bryan Garner has made this point, but unfortunately most litigators do not follow Bryan Garner, so I restate it here.