9 Writing Tips. 9 Justices. One Tumultuous Term.

Congress enacted the First Step Act of 2018 against that backdrop.[9]

9. Highlight a concession and then explain confidently why it doesn't hurt your cause.

As the examples from Justice Breyer and Justice Kavanaugh suggest, strong advocates — and yes, judges are advocates — embrace concessions and counterarguments with aplomb. From that perspective, your arguments will emerge stronger if you concede a potential weakness in your analysis and then explain why it just doesn't matter. In our final example, from New York State Rifle & Pistol Association Inc. v. Bruen, Justice Clarence Thomas offers a model of how to do so. He uses a two-step pattern I've seen from many top brief writers as well.

First, write a "to be sure" concession. Or if you can't stand that phrase, try "of course" or "it is true that."

Then add a "but" or "yet" sentence that pours water on the fire you just lit:

To be sure, "[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it." ... But reliance on history to inform the meaning of constitutional text — especially text meant to codify a pre-existing right — is, in our view, more legitimate, and more administrable, than asking judges to "make difficult empirical judgments" about "the costs and benefits of firearms restrictions," especially given their "lack [of] expertise" in the field.[10] With the current Supreme Court term promising even more tension and controversy than usual, the justices can always bask in their shared talents for crafting choice turns of phrase. While they sort all their differences out — and feel free to send them your best wishes — at least the rest of us have these nine ways to profit from their writerly abundance. Ross Guberman is the founder of BriefCatch LLC, the president of Legal Writing Pro LLC, and the author of "Point Made: How to Write Like the Nation's Top Advocates" (Oxford University Press, 2014). The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.supremecourt.gov/opinions/21pdf/21-499_gfbh.pdf.

[2] https://www.supremecourt.gov/opinions/21pdf/21-234_2b8e.pdf.

[3] https://www.supremecourt.gov/opinions/21pdf/20-603_o758.pdf.

[4] https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf.

[5] https://www.youtube.com/watch?v=uykBVlnWd9Q.

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