According to Jim McElhaney, a well-known commentator on litigation in general and legal writing in particular, there are 12 ways to screw up your brief. He presents them here in detail: Dirty Dozen: 12 Ways to Write a Really Bad Brief. As you read through McElhaney’s litany, you’ll hear yourself saying, “OMG. How can anybody be this stupid?”
Sadly, it isn’t that difficult to fall into some of these traps. Emotional involvement in a case is enticing; and before you know it, the blinders are on. And just because these mistakes are easy to make doesn’t mean they aren’t costly. Just about any one of them will weaken a brief, some will make it smell so bad that the judges will have to open the conference room windows, and one (willfully misquoting legal authorities) will get you sanctioned. None are advised.
So how do you avoid these pitfalls if you’re not a professional legal writer (and you’re probably not if you’re a trial lawyer or a GP)? Easy. Do two things: First, make a copy of this article by McElhaney and keep it handy. Read it before you start your brief, read it two or three times while you’re writing and rewriting, and read it again when you’re done. Second, once you finish your brief and you’ve done the best you can to steer clear of the 12 pitfalls, get a good, professional legal writer–someone you trust to tell you the truth–to read your final product before you file it. This person will see things you don’t see, and almost certainly improve the persuasive impact of your brief.