The Perfect Brief Part 1 - Winning with Ethics

Today and each week for the next 12 weeks, the lawyers at WordRake will explore the most ubiquitous form of a law practice—brief-writing: from the ethics to the psychology, to introducing your case, gathering your facts, presenting the facts, building arguments, persuading judges, and proofreading to make your brief the best you can make it in the time you have. We will give you checklists and teach you techniques you can learn only at WordRake from lawyers who have taught tens of thousands of litigators how to win more cases; even how to get that first draft down in 21 minutes. Our goal is to make your professional life easier by helping you understand the whole process at a deeper level—what really moves a judge to say, “Yes.”

The Importance of Ethics

How do we get from a blank page to a persuasive brief? It all starts with the foundation of any successful law practice: ethics. This might sound like the greatest irony in the practice of law, but:

The more fair we make our brief, the more likely we are to prevail.

Before we can convince a judge of anything, first we need that judge on our side. And if we approach a brief from an ethics perspective, we automatically increase our chances of making that happen. So in Part 1 of The Perfect Brief, we explore:

The Ethics behind Successful Brief-Writing

Keeping an eye on ethics as we write helps us lessen the weight of suspicion ever on the mind of a judge tasked with trying to figure out what really happened in an arena contentious by nature.

In the old ABA Model Code of Professional Responsibility, the infamous Canon 7 read: “A lawyer shall represent a client zealously within the bounds of the law.” The ABA had to replace the standard, because too many lawyers stopped at zealously.

In 1983, the ABA promulgated the ABA Model Rules of Professional Conduct and a new standard: “Model Rule 1.3: Diligence,” which requires a lawyer to “act with reasonable diligence.” The accompanying Comment specified that the new standard “does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Diligence or zeal, many of us still believe that representing clients successfully requires us to shout on paper and belittle opponents. Even the highly principled among us sometimes let digs and jabs enter our briefs—it feels good—but we forget that every one of those slips is noted first by a clerk, and then by the judge, and that with every slip we lose a little credibility.

The Psychology behind the Ethics

For 25 years we have asked hundreds of judges and clerks a simple question: “In one sentence, what are you (or your judge) trying to do on the bench.” The answer always includes the word fair.

Because a judge knows nothing about our case, she must rely on us and opposing counsel to educate her. And if her job is to be fair, and she has taken an oath to dispense justice evenhandedly, she is looking for one or both of us to help her do her job. Yes, we’ve seen ethical lawyers victimized by local politics and judges swayed by the judicial election process; we realize we can’t win over every judge; but the best way to get any judge to want to decide for us is to send signals that we are the “Fair Advocate.”

Walking the Ethical Path to Defeat the Other Side’s Case

Defeating the other side’s case is our job, but often we try to do that with name-calling, cute characterizations, hyperbole, and unreasonable demands; instead of clear, concise sentences, compelling stories, thought-provoking facts, and well-constructed paragraphs of argument. (For more on this, see WordRake Writing Tip: “Your Honor, You Are Stupid, You Suck, and Please Decide for Me.”) We understand the temptation; we’ve all been there; but often we succumb to the temptation because no one has ever taught us how to use words to enliven our cases in ways that make judges want to decide for us. They don’t cover this in law school. We’ll show you the most successful ways to defeat the other side’s case—while remaining ethical.

Next week, in The Perfect Brief, Part 2 – Thinking Like a Judge, we’ll crawl inside judges’ heads to see what’s going on in there and how we might get them to see us as the “Fair Advocate” they can rely on to help them do their job.

About the Author

Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.