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“O for a Muse of fire that would ascend, The brightest heaven of invention. A kingdom for a stage, princes to act And monarchs to behold the swelling scene.”

These opening lines from the Chorus of Shakespeare's Henry V have grabbed the attention of audiences for centuries, just as they now have attracted yours. Writing for a court requires similar skills to those of a good playwright. You must pull your reader into your world immediately, hold his or her interest while you set forth your arguments in a clear and concise manner and write so that the reader does not lose interest along the way.

The task may seem daunting at first blush, but it can be done.

In his book Five Chiefs, retired U.S. Supreme Court Justice John Paul Stevens revealed the fate of both good and bad briefs that were submitted to the nation's highest court. A poorly written brief would receive a one-time, perfunctory reading and then be put on a shelf to gather dust. As to a well-written brief submission, Stevens recalled that, while clerking at the court, he once saw Chief Justice Earl Warren copying from one side's brief directly into his draft of an opinion. What would you like the fate of your briefs to be?

The struggle to write well is never-ending, but the rewards will be great. This article will briefly discuss how to write in such a way that can effectively persuade an appellate court. But it will first review some principles of writing compelling English.

One of America's foremost appellate attorneys, and indeed one of its finest writers of prose, had only one year of formal schooling. His name was Abraham Lincoln. Yet he had an unquenchable thirst for knowledge and through hard work and self-education made himself a literate man and a fine lawyer.

Lincoln's prose is sparse and direct but he unquestionably had more than a touch of the poet. The Gettysburg Address is barely 300 words long, yet entire books have been written discussing the legal and linguistic artistry behind it. See Garry Wills' Lincoln at Gettysburg: The Words That Remade America (Simon & Shuster)

Several lessons can be gleaned from Lincoln's literary legacy. One first needs a desire to write well. After that must come a great deal of reading. Concentrate on books that have stood the test of time because they are generally the best written.

A Few Words on the Basics

You must know the meaning of the words you write. Perhaps this may seem obvious, but it needs to be stressed. There is a tendency in our busy world to use words without being certain of their meanings. This can have a very unhappy effect because it creates the impression of sloppy writing and unclear thinking.

Two examples come to mind. This writer has seen too many briefs that use the word “incredibly” in place of the word “very.” But the words have different meanings. Consider the original film version of The Producers. The jury foreman arises at the conclusion of the film to announce “We find the defendants incredibly guilty.” The effect is a nice laugh arising from a misuse of words. Do you want to generate a similar reaction when someone reads your work?

Another example is the word “transpire.” It is now freely used as a fancy way of saying “happen.” But this is not the original meaning of the word. It once meant “to be revealed or to come to light.” The desire to impress a reader with an ornate word may have the opposite effect.

Proper grammar and punctuation are the other keys to good writing. Besides the damage a badly written contract or brief can do, poor skills in this area can prove to be very costly. In Christopher Marlowe's Edward II, usurpers of the king's throne have imprisoned the monarch and wish him out of the way. However, they also want to be able to deny they ordered his murder. Their solution is to send his jailers an intentionally ambiguous message in Latin with a suspicious comma:

This letter, written by a friend of ours, Contains his death, yet bids us spare his life; 'Edwardum occidere nolite timere, bonum est.' Fear not to kill the king, 'tis good he die; But read it thus, and that's another sense, 'Edward occidere nolite, timere bonum est.' Kill not the king, 'tis good to fear the worst. Unpointed [unpunctuated] as it is, thus shall it go.

The literature on English grammar is vast and this essay does not wish to make it longer. The easiest introduction to studying grammar is Stephen King's memoir On Writing. It is a good first step for a busy reader.

The last thing to be said about the basics is that you must know what you want to say and say it clearly and directly. George Orwell's classic essay “Politics and the English Language” demonstrates how the English language, used improperly or with malicious intent, can make your prose as clear as mud.

The Brief Itself

Now we turn to the writing of a winning brief.

(1) Briefs have their name for a reason. They are supposed to be a distillation of a case down to its essential facts and legal arguments. Mark Twain once wrote in a long letter that he did not have time to make it shorter. Remember your ultimate audience is a busy judge who reads the equivalent of more than a novel a week. Don't bore the judge; keep your brief short and don't endlessly cite cases when you have a few that are “on point.”

(2) Keep your arguments direct and concise.

(3) A show business motto is “Open big.” Put your best arguments at the beginning of your brief when your reader's attention will probably be the most focused. Put your weaker arguments at the end or, better still, omit them completely.

(4) If you don't know how to express an idea clearly, consult the “Ancients.” By Ancients I do not mean Chaucer and Milton (although it would not hurt to read them) but great legal writers like Cardozo and Lincoln. You might also want to download the winning appellant's brief from Gideon v. Wainwright and read it for sheer pleasure. It is a masterpiece. The prose style you develop is your own, but when I want to write a short ringing phrase I usually think of “Danger invites rescue.” Wagner v. International R. Co., 232 N.Y. 176 (1921) On the other hand, if I want to write a clear and straightforward description of something, I usually turn to the writings of George Orwell for inspiration.

(5) Keep your prose calm and clean. I have heard judges lament at seminars that some briefs seem to be more of an attorney's cry for emotional assistance than a plea for justice. If you cannot emotionally detach yourself from an appeal, perhaps you should give it to another lawyer. Further, do not put jokes, literary quotations or personal attacks on opposing counsel in your brief. The court will not appreciate them.

(6) Don't just simply list cases without at least a brief description of the point in citing them. Otherwise, you are imposing a burden on the court.

(7) Take time to think before you begin writing. Some lawyers start writing their briefs before their ideas have had time to coalesce. This is a waste of time, although, given the time pressures in our profession, it is sadly understandable.

(8) Truman Capote said that “Good writing is rewriting.” The secret to writing well is to rewrite and rewrite until your point is clearly and concisely made. No more need be said on this point.

(9) While I have previously suggested that consulting the writing of the great appellate writers can be helpful, in the final analysis you must still do your own thinking on your case. Cutting and pasting to excess is the death knell of good appellate writing.

(10) Review your work and let others review it as well. Law is a collaborative enterprise and no lawyer lives who cannot benefit from appropriate outside comment.

(11) Remember there is no such thing as an obvious point of law. All points of law in contention must be addressed but that does not mean one has to go on endlessly about them. Use your judgment.

Good luck!

William B. Stock maintains an appellate practice in Manhattan, specializing in civil litigation.

For more from this author, see ”Words With Conviction: Effective Appellate Oral Argument” and “ The Respondent's Role in the Appellate Process.”