43 Pages Posted: 14 Jun 2017
Date Written: June 12, 2017
This article focuses on the practical effects of bad briefing on our legal process and suggests a holistic remedy: a system-wide commitment to striving to instill in law students and lawyers a respect for legal writing as, not only a fundamental competency of our chosen profession, but a talent that requires initial training, focused study, repeated practice, and conscious evolution throughout the arc of one’s legal education and career. Effective brief-writing is not as simple as a quick cut-and-paste job, a template download, or a stream-of-consciousness exercise, even for lawyers who repeatedly practice one type of case. Part I of this article offers examples of judges’ express appreciation of good brief-writing as a facilitator of judicial decision-making. Part II transitions to judges’ critique of bad briefs, spotlighting cases in which judges reference the fundamental standards introduced to students in law school legal writing courses, and noting that certain attorneys’ work product — paid for by clients — would merit a failing grade. Part III describes how a lawyer’s treatment of brief-writing as a cut-and-paste, boilerplate download, or stream-of-consciousness exercise ignores the importance of clients’ nuanced circumstances, court rules, and the role of a brief in the litigation process. Part IV illustrates how bad briefs improperly shift attorney workload to court personnel. Part V reports the views of some judges that poor legal writing shows a lack of respect for professional standards, clients, opposing counsel, and the court. Part VI summarizes federal and state court decisions within the past three years, in which judges have reprimanded lawyers for submitting shoddy written work product, accentuating tangible deficiencies. Part VII illuminates a gap between judges’ frustration with bad briefing and the reality of palpable consequences to clients and counsel; many courts attempt to address the merits of each case anyway so as not to unfairly penalize clients for the errs of counsel, whereas other courts have sanctioned or disciplined the brief-writers. Building upon the premise that bad briefing presents a fixable problem in our legal community, Part VIII renews the call for a holistic approach to improving the quality of brief-writing throughout our system. A first step is to foster intellectual humility in the 1L-student-as-writer, and then encourage the continuity of their writing practice throughout the 2L and 3L years of law school. During the law graduate’s transition to bar membership, legal communities should incorporate a commitment to legal writing standards in updated bar admission oaths, and continue to emphasize legal writing development throughout the arc of an attorney’s career, through steadfast practice mentorship and writing-related CLE requirements. The article concludes with an example of how one court modeled collaboration, respect, and problem-solving while holding attorneys accountable for deficient briefing.
Keywords: Legal Writing, Briefs, Brief Writing, Court Rules, Civil Procedure, Brief Drafting, Intellectual Humility
Suggested Citation: Suggested Citation
Brown, Heidi K., Breaking Bad Briefs (June 12, 2017). Journal of the Legal Profession, Vol. 41, pg. 259, 2017; Brooklyn Law School, Legal Studies Paper No. 507. Available at SSRN: https://ssrn.com/abstract=2984966