Judge Ranjan’s brief-writing preferences
I appreciate well-written briefs. To that end, you may wish to consider
some of my preferences, noted below.
1) Active Voice. Write in short sentences, with plain language, and use the
active voice.
2) Topic Sentences. Each paragraph in your brief should start with a strong
topic sentence, advocating your affirmative point. For example, don’t start a
paragraph by reciting the law (that should come after the topic sentence), and
don’t start it by saying what the other side argued (again, that should come
after the topic sentence).
3) Brevity. Be brief. If you are butting up against a page limit, then that
presents an opportunity to revise.
4) Block Quotes. Avoid block quotes.
5) Adjectives and Adverbs. Strive to eliminate these. Similarly, keep rhetoric
in general to a minimum.
6) Introduction. The introduction is a critical part of your brief. Your
introduction should be 1-2 pages and be a clear roadmap of the entire brief,
laying out your main points in a succinct fashion. Don’t waste space in your
introduction with throat-clearing formalities (e.g., “Here comes Plaintiff, by
her undersigned counsel...”).
7) Your Opponent. When describing the other side’s arguments, please use
respectful language. For example, say “the plaintiff’s argument is not well-
taken,” not “the plaintiff’s argument is meritless, non-sensical, and
disingenuous.” Out of respect, when referring to an individual party, please
consider calling him “Mr. Smith,” not just “Smith.” Also, don’t personally
attack opposing counsel.
8) Legalese. Do not use Latin or legalese; this includes words like “arguendo,”
“infra,” and “supra.” The only exceptions are where the names of a claim,
defense, or doctrine are in Latin and there is no English substitute (for
example, “negligence per se,” “ex post facto violation,” “motion to
reinstate nunc pro tunc”).
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9) Abbreviations. Avoid abbreviations and defined terms. A brief is not a
contract. For instance, if you represent Winston Steel Company, Inc. just say
“Winston” in the brief. You don’t need to define it as Winston Steel Company,
Inc. (or “Winston”), and definitely don’t abbreviate it with an ugly-looking
acronym, like “WSCI.” In this same vein, try not to call parties “Plaintiffs” or
“Defendants,” and instead use proper names, if possible.
10) Know Your Standard. The standard of review governing your brief will
dictate how your arguments are framed. For example, if you are writing a brief
in support of a motion to dismiss, you shouldn’t say things like, “Plaintiffs
cannot prove X.” A motion to dismiss tests the sufficiency of the pleading, not
the proofs—so, instead, you would frame your argument like, “Plaintiffs failed
to plead X.”
11) Case Analysis. Avoid excessive case analysis. Instead, make your point,
then cite relevant cases with parenthetical explanations immediately after for
support. I prefer direct quotations from the opinion to one-sentence summaries
that you generate yourself. If there is an important case that needs to be
discussed, emphasized, or distinguished, then you can engage in discussion of
that case. This should be done sparingly, and only if the case is directly on
point or if it is featured prominently in your opponent’s brief.
12) Citation Form. Follow the Blue Book as a guide, but interpret it in a
reasonable manner. Don’t be a slave to it, especially on abbreviations. Just try
to be rational and internally consistent in how you cite things.
13) Headings. Use short headings, and minimize the use of subheadings. Be
consistent regarding the format of headings (some people initial cap certain
words in headings, some people use all lower case; it doesn’t really matter, so
long as you are consistent. The popular trend is toward no initial caps).
14) Visual Tools. Use visual devices and tools to make things easier on your
reader. In this regard, paragraph breaks are critical; break your paragraphs
up, and avoid a paragraph that is more than a half-page long. Additionally,
where appropriate, use organizational devices like numbering (“first,”
“second,” “third”); bullet point lists; charts and graphics; and timelines. For
example, in a case where the timing of events is critical or convoluted, consider
creating a timeline in the fact section.
15) Typos. Your brief should not have typographical errors. This also includes
formatting nits (e.g., are all your apostrophes “smart” ones, or do you have
some “straight” ones peppered in from when you copied and pasted a case cite?
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Do you have hanging headings? Did you inadvertently paginate your certificate
of service?).
16) Protect your reputation. Your brief is part of your
reputation. Substantively, that means don’t stretch your arguments, play fast
and loose with the record or the law, and do other things that undermine your
credibility. Aesthetically, you should strive to have a professional-looking brief.
Subject to any required rules, you should think about selecting handsome fonts
and font sizes, how your cover page looks, and other details that make your
brief look professional.
17) Footnotes. Try to avoid or minimize footnotes. If you want to challenge
yourself, write a brief with no footnotes.
18) Grammar. People have different views on grammar. Your use of grammar
should be defensible. For example, some people add one apostrophe to the
possessive for “Mr. Jones’ car.” Other people add an extra “s”—"Mr. Jones’s
car.” I add the s, and can defend it based on the grammar rules of Strunk &
White.
19) Sections of the Brief. Consider whether your brief needs certain
sections. For summary judgment briefs, your brief may not need a section on
the standard of review, since all judges are familiar with that standard. Or, for
a motion to dismiss, your brief may not need a fact section (or may just warrant
a very brief summary of the facts) if the facts are apparent from the complaint
and otherwise are raised in the context of your argument section.
20) Reply Briefs. Reply briefs are different than principal briefs. A good test
for a well-written reply brief is that someone should be able to read your reply
brief and understand the critical aspects of the case. A reply should briefly re-
state key principal arguments; point out important weaknesses and
concessions by your opponent; and respond to important arguments raised by
your opponent. It does not have to be exhaustive and does not have to address
every single point or case raised by your opponent. If your opponent cites a
number of cases, consider finding a few common distinguishing points to deal
with them all together.
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