Judges have long voiced their frustrations over verbose, confusing court briefs. And as noted in a previous blog, some courts have tightened their word limits to guard against long-winded briefs. So what can you do to make sure that your briefs are not only readable, but powerful? Professor Mark Cooney, who explained the problem of rejected legal documents in his last post, here offers ten tips for clear briefs that you can feel confident submitting to the court.
1. Sue 'em!
Prefer the simple sue or sued to elaborate alternatives. In the sentences below, for example, courts used four or five words — even six words — to say what sue or sued would’ve said in one:
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“Plaintiff has brought causes of action against Napili Ridge for the negligent employment and supervision of Firestine.” [Five words to say sued.]
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“Danella instituted a cause of action against Heimbach on April 20, 1990.” [Six words to say sued.]
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“Mr. Howard was not subject to the requirements of R.C. 2969.25(A) when he commenced a civil action against MTC and its employees.” [Five words to say sued.]
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The defendant in the present case merely threatened to institute legal action against the plaintiff. [Four words to say sue.]
The U.S. Supreme Court has consistently shown us a better way. Notice the improved directness and flow in the following sentences, thanks to the justices’ confident use of sue or sued:
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“A decade earlier, Elizabeth Charlton sued to recover… an assortment of jewels…” [Chief Justice Roberts]
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“He sued Ford in Minnesota state court…” [Justice Kagan]
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“More than two years later, Ms. Torres sued the officers for damages in federal court under 42 U.S.C. § 1983.” [Justice Gorsuch]
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“But the majority does not suggest… that the United States may sue as a third-party beneficiary of the Compact or under some ill-defined equitable cause of action.” [Justice Jackson]
Usually the mere act of suing, while important, isn’t our sentence’s main idea. Both writer and reader are usually more interested in the theory of liability, the timing, or something else that’s significant. So with rare exceptions, there’s no value in belaboring the act of suing.
2. Use words in your sentences (instead of midsentence citations).
Lawyers cite law. But midsentence citations disrupt flow. So with occasional exceptions, prefer to use words in your sentences and to cite after. We can improve readability by using shorthand references such as “the Act,” “the statute,” or “the notice provision” rather than clogging our prose with raw numbers and letters. Here’s a before-and-after comparison:
Before (from a court opinion)
In the Tax Reduction and Simplification Act of 1977 (TRSA), Pub. L. 95–30, sec. 309(a), 91 Stat. 154, Congress enacted the initial version of section 170(f)(3)(B)(iii), creating an exception from the general rule of section 170(f)(3)(A) for an “easement with respect to real property granted in perpetuity to an organization described in subsection (b)(1)(A) exclusively for conservation purposes.”
After
In the Tax Reduction and Simplification Act of 1977, Congress enacted the initial version of the conservation-easement rule. Pub. L. 95–30, sec. 309(a), 91 Stat. 154. This rule created an exception to the general no-deduction rule for an “easement with respect to real property granted in perpetuity to [a qualified] organization…exclusively for conservation purposes.” 170(f)(3)(A).
Lawyers can still make quick, clean midsentence references to cases (“but Jones is distinguishable”) and statute sections (“under § 3135”). But when full citations are necessary, they can usually wait until after the sentence.
3. Use words in your sentences (instead of acronyms and initialisms).
Courts have long lamented briefs containing an “abundance of pesky acronyms.”[1] As one judge remarked, acronyms are “difficult for ordinary readers to keep straight.”[2] One appellate court went so far as to strike a brief filled with unfamiliar acronyms, initialisms, and number strings. The court did “not appreciate this heavy reliance on shorthand notation, nor [did it] find such briefing proper under the rules of appellate procedure.”[3] The court complained that it took “[t]remendous effort” to understand the brief because most sentences contained at least one acronym.[4]
Let’s try a different approach. Here’s an acronym- and initialism-laced passage from a federal case:
Because WADOE was working with EPA and the dairy industry to develop a general NPDES permit during this time, WADOE did not require dairies to apply for, nor did WADOE issue, general NPDES permits.…WADOE nevertheless had the ability to issue individual NPDES permits to CAFOs and WADOE’s hiatus from issuing general NPDES permits did not excuse dischargers from CWA liability.
We can improve readability by using words for shorthand references and keeping just the most familiar initialism:
Because the Department was working with the EPA and the dairy industry to develop a general permit during this time, the Department did not require dairies to apply for, nor did it issue, general permits.…It nevertheless was able to issue individual permits to feeding operations, and its hiatus from issuing general permits did not excuse dischargers from liability under the Act.
As Justice Antonin Scalia and Bryan Garner observed in Making Your Case: The Art of Persuading Judges, “You may be surprised how easy it is to avoid a brief of alphabet soup—and from the reader’s point of view (which is the only point of view that counts) it is worth the effort.”
4. Don’t clutter your prose (and insult readers) with unnecessary parentheticals.
Our prose is clearer when we resist giving readers help that they don’t need: parentheticals for painfully obvious shorthand references. Here’s a parenthetical-heavy example from a federal-court opinion:
Plaintiff brings this action against Pharmacist Julie Finch (hereinafter “defendant Finch”), Lieutenant Mack (hereinafter “defendant Mack”), Sergeant K. Hallman (hereinafter “defendant Hallman”), Dr. Connie Vice (hereinafter “defendant Vice”), Dr. Herbert Myles (hereinafter “defendant Myles”), Dr. Michael Weinstein (hereinafter “defendant Weinstein”), Daniel Johnson (hereinafter “defendant Johnson”), Judge J.B. Allen (hereinafter “defendant Allen”), and H.G. Alexander (hereinafter “defendant Alexander”).
Those parentheticals simply repeat each defendant’s surname. As a reader, would you need this help? Would you be perplexed by a later reference to Dr. Myles or Judge Allen? I doubt it. And the hereinafters are stilted and unnecessary, adding nine empty words.
A parenthetical-free version is shorter and easier to read. Let’s use Tip 1, too:
Plaintiff has sued Pharmacist Julie Finch, Lieutenant Mack, Sergeant K. Hallman, Dr. Connie Vice, Dr. Herbert Myles, Dr. Michael Weinstein, Daniel Johnson, Judge J.B. Allen, and H.G. Alexander.
We owe our readers every effort toward clarity. Yet party parentheticals work against us right from the start. So if we wouldn’t need the extra help as readers, we should forgo the parentheticals as writers—and let our prose flow.
5. Use short sentences. Use them frequently.
The most accomplished legal writers, including many federal appellate judges, embrace short sentences. Consider this passage by Justice Kagan:
Ford is a global auto company. It is incorporated and headquartered in Michigan. But its business is everywhere. Ford markets, sells, and services its products across the United States and overseas. In this country alone, the company annually distributes over 2.5 million new cars, trucks, and SUVs to over 3,200 licensed dealerships.
Three of those five sentences had fewer than eight words. Another had just thirteen words. You’ll notice the same style from accomplished authors of nonlegal works. Consider this opening passage from a short story by Pulitzer laureate Jennifer Egan:
When they finally reach the dunes, Jann, the photographer, opens a silver umbrella. This is the last shot of the day. The light is rich and slanted. Around them the sand lies in sparkling heaps, like piles of glass silt.
A girl toes the sand. She wears a short cotton skirt, a loose T-shirt. A few feet away from her, the stylist pokes through a suitcase filled with designer bathing suits. The stylist’s name is Bernadette. She’s been doing this for years.
Eagan’s sentences are 13, 8, 6, 13, 5, 9, 17, 5, and 6 words, for an average of 9 words per sentence. This confident use of shorter sentences is a hallmark of elite professional writing.
So while working on your next draft, don’t be afraid to write more like a Pulitzer laureate. Strive for sentence-length variety. And remember: short is strong.
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6. Start new paragraphs.
First, let’s hear from some judges who read our briefs:
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“Avoid long paragraphs.” – Judge Gerald Lebovits, New York
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“Keep the paragraphs…The mind is incapable of ‘staying with’ a long paragraph.” — (Ret.) Judge Robert S. Hunter, Illinois
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“Long, run-on sentences and paragraphs” are the quickest way to lose a judge's attention. — Judge Wallace A. Lee, Utah
Indeed, few stylistic flaws turn off readers faster than the dreaded wall of text—those dense full-page (or nearly full-page) passages without a single indent. Space limitations prohibit examples here, though I have plenty that I like to show audiences. Alas, they’re too easy to find.
Long chunks of solid text give off a disorganized and inconsiderate vibe. And readers have every reason to anticipate a swirling stream of consciousness. Simple indents in logical places go a long way toward enhanced readability—and reader goodwill.
*A note here from the editor at WordRake: Our house style places an extra space between paragraphs to differentiate, rather than using indents to break up our paragraphs. That’s why Professor Cooney’s articles on our site usually don’t include indents.*
7. Signpost with care and confidence.
Use confident, succinct signposts and transitions (as noted in a recent blog by Danielle Cosimo and Ivy Grey). A simple signal of a contrasting or consistent idea can do wonders for cohesion and reader comprehension. The most effective writers use a variety of signposting techniques but lean heavily on simple conjunctions.
Consider Justice Kagan’s signposts in the case excerpt below. I’ve highlighted them (and removed the citations):
Those claims need not relate to the forum State or the defendant's activity there; they may concern events and conduct anywhere in the world. But that breadth imposes a correlative limit: Only a select “set of affiliations with a forum” will expose a defendant to such sweeping jurisdiction. In what we have called the “paradigm” case, an individual is subject to general jurisdiction in her place of domicile. And the “equivalent” forums for a corporation are its place of incorporation and principal place of business. So general jurisdiction over Ford (as all parties agree) attaches in Delaware and Michigan—not in Montana and Minnesota.
Note Justice Kagan’s sequencing and signaling. The sentences logically build on each other. She uses But to give an immediate and unmistakable contrast signal while maintaining flow. She uses And to signal additional, consistent information. And she finishes with a blessedly comma-free So to signal a logical conclusion or consequence.
Notice how closely Justice Kagan’s style tracks that of Nobel laureate Toni Morrison:
Cannon defending canon, you might say. And without any etymological connection I heard father in fodder, and sensed father in both cannon and canon, ending up with “father food.” And what does this father eat? Readily available people/texts of little value. But I changed my mind (so many have used the phrase) and hope to make clear the appropriateness of the one I settled on.… It may appear churlish to doubt the sincerity, or question the proclaimed well-intentioned selflessness, of a 900-year-old academy struggling through decades of chaos to “maintain standards.” Yet of what use is it to go on about “quality” being the only criterion for greatness knowing that the definition of quality is itself the subject of much rage and is seldom universally agreed upon by everyone at all times?
8. Get to the point.
There’s no suspense in good legal writing. So we should use strategies to ensure that our reader (a busy judge or judicial clerk) understands our argument within a minute.
In briefs, try an introduction section that tracks a deductive syllogism. If we think hard and edit with care, we can boil down almost any legal argument to a topic sentence plus a syllogism:
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major premise (rule),
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minor premise (facts),
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conclusion.
For a single argument, try to keep the introduction to about five sentences:
[Topic sentence] Attorney John Doe’s allegedly defamatory statement is not actionable. [Rule] Michigan’s absolute judicial-proceedings privilege protects relevant statements made by attorneys during litigation. And courts have clarified that the privilege applies during settlement negotiations. [Facts] Here, Doe’s disputed statement appeared in a settlement-demand email that he sent while handling a pending personal-injury case, and his statement described why a jury might question his opponent’s credibility. [Conclusion] So Doe’s statement, even if false, was relevant to the case and thus absolutely privileged.
In about 30 seconds, the judge or judicial clerk could read that paragraph and get a firm handle on the argument. And the syllogism creates an almost irresistible logical momentum.
9. Write like a SCOTUS justice: prefer confident, direct language.
Needlessly inflated language is fool’s gold. Don’t bog down your message. If you spot rote lawyerisms in your drafts, choose substitutes that are more direct. In other words, write more like a U.S. Supreme Court justice:
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Pursuant to the supply and purchase agreement, MGI agreed to purchase…
Justice Thomas: “Under the supply and purchase agreement, MGI agreed to purchase exclusively from Helsinn any palonosetron product approved by the FDA.”
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Chapter 11 enables a debtor to reorganize its business pursuant to a court-approved plan.
Justice Kagan: “Chapter 11 of the Bankruptcy Code enables a debtor company to reorganize its business under a court-approved plan governing the distribution of assets to creditors.…This case came about because the Code's list of insiders placed an obstacle in the way of respondent Lakeridge's attempt to reorganize under Chapter 11.”
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The flow of commerce would sputter if companies could keep their patent rights subsequent to the first sale.
Chief Justice Roberts: “That smooth flow of commerce would sputter if companies…could keep their patent rights after the first sale.”
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Exposure to asbestos, a natural mineral utilized in industrial work, has led to devastating health consequences for millions of people.
Justice Sotomayor: “Exposure to asbestos, a natural mineral used in industrial work, has led to devastating health consequences for millions of people.”
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Prior to the founding, colonial governments passed statutes to secure land for courthouses, prisons, and other public buildings.
Justice Barrett: “Before the founding, colonial governments passed statutes to secure land for courthouses, prisons, and other public buildings.”
10. Avoid unnecessary dates—and if dates are relevant, do some math for your reader.
Resist the temptation to knee-jerk dates into your prose. Think carefully about whether a date is relevant or a crutch. If an issue isn’t time-sensitive, our default mode should be to ditch the dates.
If our issue is time-sensitive, then dates are relevant. Yet we can help busy readers by doing more than simply inserting raw dates. We can do some math to help them easily appreciate timing. Let’s start with an example that contains mostly raw dates:
Gordon demanded a referral on May 3, 2024. Dr. Frank referred him to Dr. Jackson the next day. Gordon called Dr. Jackson’s office on June 24, 2024, to make an appointment. Dr. Jackson took Gordon’s MRI on July 14, 2024. He phoned Gordon with the results on July 27, 2024. Gordon served his notice of intent to sue on December 21, 2024, well within the six-month discovery period.
Notice how challenging it was to process those dates. If we simplify the dates and do some math along the way, our reader will have an easier time:
Gordon demanded a referral on May 3, 2024. Dr. Frank referred him to Dr. Jackson the next day. Gordon called Dr. Jackson’s office almost two months later, on June 24, to make an appointment. Dr. Jackson took Gordon’s MRI on July 14. He phoned Gordon with the results about two weeks later, on July 27. Gordon served his notice of intent to sue less than five months after learning the MRI results, on December 21. This was well within the six-month discovery period.
Final Note
These are just ten among many possible techniques for enhancing readability. Yet this list hints at how much we have to think about as legal writers. Achieving clarity isn’t easy. But the extra editorial work is worth it. Our readers are heavily taxed, working through hundreds of pages of dense legal prose every workweek. If we adopt techniques that make their work easier, we’ll build goodwill and credibility. And we’ll make a better connection and persuasive impact. That’s a great service to our clients.
About Mark Cooney
Mark Cooney chairs the writing department at Thomas M. Cooley Law School. He was Editor in Chief of The Scribes Journal of Legal Writing for six volumes and now serves as a Senior Editor. He is author of Sketches on Legal Style (Carolina Academic Press 2013) and coauthor of The Case for Effective Legal Writing (Carolina Academic Press 2024). He has published more than 50 articles or book chapters on legal writing and other topics. His works have appeared in The Green Bag, Legal Communication & Rhetoric: JALWD, the Scribes Journal, and elsewhere, and have been quoted and cited by state and federal courts.
[1] Natural Res. Def. Council, Inc. v. B.P. Prod. N. Am., Inc., 2009 WL 1854527 at *2 (N.D. Ind. June 26, 2009).
[2] TDS Metrocom v. Bridge, 387 F. Supp. 2d 935, 939 (W.D. Wisc. 2005).
[3] Cognata v. R.W. Johnson Const. Co., Inc., 2006 WL 949964 at *1 (Tex. App. April 13, 2006).
[4] Id.
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