Thoughts on Writing Briefs and Decisions
We Could All Do Better
The other day, I got a closing brief that was nearly 150 pages long. After I revived from my fainting spell and then recovered from my silent temper tantrum, I started toying with the idea of imposing page limits.
The facts of this case are not complex, but the politics of the workplace are, and I suspect that the party writing the brief intended for its length the convey the seriousness of their position. Message received, I guess. But I already understood how serious it was, based on the thorough opening statements. While this brief is an outlier in its length, it is common for the parties to file voluminous written briefs in cases that could have been argued orally.
I’ll save my opinion on “to brief or not to brief” for another week. This week I want to talk about some ideas for how to write better briefs.
Plain English: The book Plain English for Lawyers has been around since long before I graduated from law school almost 25 years ago, and yet few advocates seem comfortable removing legalistic language from their briefs. Once someone learns “legal writing,” it’s hard to go back to writing like a normal person but it’s worth adopting the habit of plain English. Take out long words, legal words, and all adverbs. Use stronger verbs and shorter sentences. Ask a non-lawyer to read it for clarity. There are lots of resources on plain English
Simplify Format: Coincidentally to what I will discuss below (decision format), Anil Dash just published this blog post, Make Better Documents. While it is geared more toward presentations, there’s good advice in there for brief writing. In addition, presentations at a hearing, like during an opening statement, can create an excellent map for the arbitrator to follow the case. They aren’t evidence but a good presentation will be the blueprint for a concise closing statement.
Write the Award: A persuasive brief should read like a draft of the decision you want. Tell me, the arbitrator, the relevant facts and the persuasive arguments, so that I don’t have to do as much work to rule in your favor. If I don’t understand someone’s arguments, if there are too many extraneous arguments, or if I have to wade through lots of irrelevant facts, I won’t pick up your brief more than once. But if your brief is written like a decision, I can use it as my outline for how I decide the case. In trial courts, the parties are often asked to submit a draft order, which the judge can just sign, rather than writing an award. A girl can dream.
Speaking of Awards, the other day I listened to Easy Reading is Damn Hard Writing from the CJIA In All Fairness podcast (the title is a Nathaniel Hawthorne quote) hosted by Caroline Mandell. I can’t find a link to the episode but the podcast is on Apple and maybe other places. Ms. Mandell interviewed three Canadian jurists who are working to improve legal decision writing so that litigants, particularly criminal defendants and pro se litigants, better understand the decisions. One of the judges had famously written a decision for the defendant: R. v. Armitage is addressed to the man whose case had arisen before Judge Nakatsuru. It was surprising to me how novel the decision was. It makes sense that decisions should be written for the person who is receiving the court’s justice. Nakatsuru believes that Armitage has a right to understand.
Many arbitrators, including me, write decisions for the losing party. We presume that both sides turn to the last page to read the decision but only the losing party goes back to read the reasons for the decision. That general principle assumes a few things, however. First, it assumes that the decision needs to come at the end. It assumes that the decision doesn’t have much to offer the winning party besides victory. We ought to challenge those assumptions.
The way to do that, I think, is the change the format of our decisions altogether. This was the argument of Ms. Mandell’s guests: that the current format isn’t the best way to present the evidence.
My decisions are structured this way: Introduction (identifying parties and hearing information); party representatives; Statement of the Issues; applicable contract and policy sections; Statement of Facts; Decision and Award. Some arbitrators include Positions of the Parties but I think that’s filler. I can demonstrate that I understand the positions of the parties by addressing them in the decision section.
One of the Canadian Jurists (which is probably the name of a rock band of law students) proposed a different model:
Introduction that identifies the “deep issue,” i.e. what is really at stake in the case
Factual context: not the full statement of facts but just the context in which the issue has arisen
Statement of the Issue(s)
Decision by Issue
Issue 1: State Outcome
Law/Contract language and Facts discussed together
Plain language reasons for decision/outcome
Issue 2: State Outcome (repeat above)
Summary
This approach brings all the factors close to one another so that each issue is plainly understood by the parties, by the union members/supervisors, and by individuals and arbitrators in future cases. I haven’t tried writing a decision in this format but I may try with the next decision in the queue. I’ll let you know how it goes.