I am so good I’m bad
Do you over write your brief or over train for oral argument? Is there such a thing as too much of a good thing? I have asked myself these questions many times in the past, and fairly frequently these days as I prepare my students for moot court competitions and, ultimately, the practice of law. In this week’s post, I am pulled back in time to my first real-world appellate brief.
I will admit to being a tad overly zealous when I first began practicing. In the first brief I filed, my table of authorities was more than two pages. Opposing counsel had cited 6 cases. She said I needed to have my caffeine taken away. She was right. I am not saying that my brief was bad. I didn’t think it was bad then, and I still don’t. It was just too long; the amount of briefing I did was unnecessary.
It is easy to be lulled into believing that you need an elephant gun to kill a house fly. That gun, however, will do far more damage to the house than to the fly. In fact, you might miss the fly altogether. Writing too much can (1) lead your reader to believe you lack confidence in your case, yourself, or your reader; (2) cause you to potentially say something that is better left unsaid, and (3) bore your reader. None of these options is persuasive.
In that first, real-world, appellate brief, I managed not to say something that was detrimental to my argument. And, although I won, I have to credit the correctness of the legal issue rather than my stellar advocacy skills. As I wrote my brief, I was confident … and I wanted the world to know how right I was. I imagine that my reader was not persuaded by my confidence, or that the reader saw any confidence in my writing. While I set out the rules, and where they came from, and described the many ways in which the courts had applied the rules, and compared our facts to the facts of every case I had relied on, repeating and repeating myself, my opponent said only what was necessary. She articulated the legal issues, explained only what needed to be explained, and alluded to arguments that were tangentially related to the main argument, but said no more. I, on the other hand, went after every point with the same enthusiasm my dog exudes when he chases tennis balls. And, just like my dog, as soon as I set my teeth fully into one point, I dropped it to chase after another. Each point was fully made, but just barely, and the reader had to be exhausted trying to keep up.
By using the same level of enthusiasm for every point, I left the reader wondering if I knew what my strongest argument was, or if I understood my opposing counsel’s strongest argument. The reader was likely bored reading pages upon pages about a fairly simple legal issue, and wondering whether I would ever get to the point.
I cringe when I think that the reader, who was reading my brief for work rather than for pleasure, had to read every one of those pages. After all, the reader couldn’t just skip to the end, lest I had hidden a treasured moment of wisdom somewhere deep inside. My lack of discernment regarding what should be included and what could be left out diminished any trust the reader had that I was correct.
As my career developed, I became a better writer. My writing became direct and straight to the point, allowing logic to guide persuasion, making more of the important points and presenting — without fanfare — the foundational points that set the stage for main act. Later, when I became the reader, I valued the simplicity of a well-organized, logical argument.