I am an appellate attorney, which means that 90% of my practice is writing legal briefs. But that statement doesn’t really capture what I do for a living because it sounds like all I do is write, which could be as simple or formulaic as changing names and dates in a template or model brief.
Over the decade and a half of writing appeal briefs and motion memoranda of law I have realized that what I do is far more complex than “legal research and writing.”
More accurately, what I do is “legal analysis and writing.” And the bulk of my work is on the first part: legal analysis. It is by far the most important part of the work in creating a solid legal argument—it is the foundation upon which all the rest is built.
Over the years, I’ve noticed that legal analysis is where lawyers most fail at creating a strong legal argument. Sometimes the legal analysis is so lacking that I can’t even figure out what my adversary’s argument is! That is a very bad position for you to be in with your argument, because if the lawyer responding to your argument doesn’t understand your analysis you can bet the judges are going to have a hard time with it, too—especially because your adversary can take advantage of the weakness of your argument to spin it in a way that makes their position look more favorable.
What does it mean to have bad legal analysis? I’ll give you an example from a recent brief I worked on. I was actually editing an opening appellate brief in a Circuit Court appeal (note: I do not usually handle editing projects but every so often I will agree to edit a brief or memo for a long time client). The client’s claim involved a federal statute; the facts supported his position in a general way, but they did not fit cleanly within the plain language of the statute. The District Court of course had decided against the client’s position. The lawyer I was helping drafted a brief that simply restated the elements in the statute and the facts that (he rightly believed) tilted the equities in his client’s favor.
The problem was the statute required a specific showing of particular facts. I could see that there was an argument in support of applying the statute, but it had to be parsed out in a careful way using decisional case law analogies and different intersecting parts of the statute. In his zealous fervor, the lawyer who drafted the brief focused on repetition of facts and elements, instead of a deeper analysis to figure out how to squeeze the square set of facts into the round hole of the statute. It was a major failing of his legal analysis, and it led to a terribly weak brief.
I did my best to clean it up for him. But editing a weak legal argument is like trying to fix a building with faulty foundations by cleaning the windows. The brief really needed to be torn down and reconstructed from the ground up—starting with a careful analysis of the law as it existed or the arguments in support of moving the law to a place that covered his client’s situation. (This is also why I generally decline editing projects; I have a legal writing method that I use to create solid arguments and it is impossible for me to create a strong brief without following it from start to finish).
A word to the wise (lawyer): put sufficient time up front in your legal writing process to really analyze your argument. If you don’t have time to do it, and I know we are all busy lawyers, then do right by your client and outsource writing the brief to someone who focuses their practice entirely on legal analysis and writing.
If you want to talk to me about the brief you need to write, get in touch here.
