TOP BRIEF-WRITERS ARE MORE LIKELY TO . . .
RANDOM BRIEF-WRITERS ARE MORE LIKELY TO . . . Use language like “actual,” “fanciful,” “inexcusable,” “infamous,” and “optimal.” Use language like “alternatively,” “comparably,” “contemporaneously,” “inordinately,” and “unequivocally.”
TOP BRIEF-WRITERS ARE MORE LIKELY TO . . . Start sentences with language like “As for,” “After all,” “If,” “Indeed,” and “Those.” Start sentences with language like “At the same time,” “Put another way,” and “To begin with.” Use language like “and so,” “by extension,” “for that reason,” “likewise,” “more to the point,” and “not only because.” Include numbered lists with language like “Second,” “Third,” and “Fourth.” Use language like “than any,” “than that,” and “than those.” Use language like “days later,” “weeks later,” and “months later.”
RANDOM BRIEF-WRITERS ARE MORE LIKELY TO . . .
TABLE 8
TABLE 10
Adjectives Use language like “candid,” “inapt,”
Sentence Openers: Lightness
Start sentences with language like “Consequently,” “Regarding,” and “Subsequently.”
“mistaken,” “rare,” “tiny,” and “unsettled.” Use language like “elsewhere,” “partly,” “precisely,” “sooner,” “thoroughly,” and “worse.”
Adverbs
Sentence Openers: Logical Precision
Start sentences with language like “Additionally,” “Also,” and “Furthermore.”
Midsentence Logical Moves
Use language like “and, therefore.”
Factor 7: Tone Police How about tone? Are better brief-writers more civil, more logical, less aggressive in making their points, as so many judges contend? The answer: Yes, but the distinctions are slight. Legal writing professors can take a victory lap over the data on “clearly” (we ignore “clearly erroneous”). But only a short lap: “Clearly” appears slightly less often in top briefs, though still far more often than many realize—including in the briefs of many appellate stars who decry “clearly” in public. We include two types of tone differences below.
Numbered Lists
Comparisons
Time References
Include complete dates.
TOP BRIEF-WRITERS ARE MORE LIKELY TO . . .
RANDOM BRIEF-WRITERS ARE MORE LIKELY TO . . . Use language like “clearly,” “completely,” “drastically,” “utterly,” and “wholly.” Use language like “blatantly,” “deceptively,” “disingenuous,” “draconian,” “egregious,” and “flagrantly.”
Sentence Adverbs
Start sentences with language like “More specifically,” “Notably,” and “Significantly.”
TABLE 9
Intensifiers Use language like “entirely.”
Judgmental Modifiers
Use language like “incorrect,” “mistaken,” and “wrong.”
TOP BRIEF-WRITERS ARE MORE LIKELY TO . . . End sentences with words like “before,” “change,” “course,” “enough,” and “like.”
RANDOM BRIEF-WRITERS ARE MORE LIKELY TO . . . End sentences with words like “entirety,” “exclusion,” “inapplicable,” “justified,” and “thereafter.”
TABLE 11
Final Word of Sentence
Factor 8: Gushing Flow The greatest difference of all relates to internal logic. How well does the lawyer massage disparate points into a cohesive whole? How well does the lawyer create order out of chaos? How well does the lawyer push the reader forward? How well does the lawyer avoid needless interruptions? See Table 10 above right. Factor 9: Lighter Than Air Because our analysis included punctuation and capitalizations, we could crunch data on how sentences start and end. I was curious to see a pattern I hadn’t noticed before: Perhaps because they have a good ear and want to end sentences elegantly, the best brief-writers are much likelier to end sentences crisply. See Table 11 to the right. Speaking of endings, let’s close with an image of you as the data-backed ideal brief-writer. Your secret is not that you re- cite “Concise. Clear. Organized.” before you go to bed while your
colleagues don’t. But it’s not an ephemeral art, either. You discuss fewer cases for the same points while interspersing more pithy quotes from the ones you do cite. You add the occasional dash or colon to elaborate or explain. You’re not afraid to concede a point outright, and you try to synthesize as much case law as you can. On the wording front, you strike wordy phrases. You freshen up your draft with punchy language. You replace dull verbs with vivid ones. Rethink your modifiers. Apply a light touch to sen- tence openers and endings. And add headings, numbered lists, and logical connectors. I forgot to mention: And do all that while getting the law right, the record mastered, and the deadlines met. It’s not easy. But it’s still much more science than art. q
Published in Litigation, Volume 46, Number 4, Summer 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 5
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