Write the argument, then the facts
A lawyer attending one of my seminars offered a great suggestion that I had never thought of. (Oops! "of which I had never thought.")
When writing a brief in a case with a long or complex factual record, make detailed notes about the record, but do not write your statement of facts yet. Outline and write your argument, using your record notes as a reference. Then write the statement of facts. You'll know exactly what facts are relevant and what facts are key. You'll know what facts you can leave out. You'll be better able to frame and phrase the facts in ways that favor your arguments.
Just because the facts come before the argument in a brief doesn't mean you must write the facts before you write the argument.
If you're a practicing lawyer who writes briefs, you probably already do this. It just makes sense. But it's a good tip for law students and young lawyers.
Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
When writing a brief in a case with a long or complex factual record, make detailed notes about the record, but do not write your statement of facts yet. Outline and write your argument, using your record notes as a reference. Then write the statement of facts. You'll know exactly what facts are relevant and what facts are key. You'll know what facts you can leave out. You'll be better able to frame and phrase the facts in ways that favor your arguments.
Just because the facts come before the argument in a brief doesn't mean you must write the facts before you write the argument.
If you're a practicing lawyer who writes briefs, you probably already do this. It just makes sense. But it's a good tip for law students and young lawyers.
Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
Since I started writing the argument first and then drafting the statement of facts, it's cut my time spent on a brief by half.
Also, a federal clerk recently told me that judges were frustrated with extraneous facts. This is a good way to make sure that you get the judge to the heart of the matter without wasting time or space.
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A more experienced appellate attorney taught me this which is an excellent technique. Depending on the length of the record and the amount of time you have, very useful!
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It's a myth that you can't end sentences with prepositions. I can't tell if you're making fun of the myth or acknowledging it as a rule. You might want to clarify this so you don't mislead readers into thinking that this myth is a rule.
Wayne says:
I know, and I'm poking fun at the "rule." I will clarify.
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A perfectly valid and interesting comment ruined by the pathetic reference and validation of the outrageously childish and anachronistic "rule" that sentences can never end with a preposition. Why pander to this nonsense? It is as ridiculous as the ludicrous American assertion that "Between" can be used only where 2 nouns are used and "Among" must be used in all other cases.
If you wish to espouse better writing among law students, you would do far better than encouraging them to believe in these idiocies.
Wayne says:
Thank you, Nick. Hard to tell what, exactly, you are referring to. (Oops! "To what you are referring.")
My post or the comment on the post? You used the word "comment," which made me think you were referring to a comment on the post. But then you wrote of espousing better writing among law students, which made me think you were referring to me and my post.
Anyway, if you're referring to me and my post, then you need to tune your writing radar a bit. I've blogged several times about the non-rule against ending sentences with a preposition. My parenthetical comment in the post, as with the one in this reply to your comment, was a joke.
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