A Few Words on Choosing Words Well

by David L. Lee¹

Although persuasive legal writing is a large topic, it is also a skill, and, as a skill, it can be improved by study and practice. In this article, I want to discuss five areas that will help improve your persuasive writing skills: writing at the proper level of ignorance, writing factual arguments, writing caselaw analogies, recognizing red flags, and responding to arguments.

One problem in legal writing is that when you master the facts, research the law, and marshall your thoughts, you are turning yourself into an expert. Expertise has its virtues, but clear communication with those who are not experts is not generally among them.

What's wrong with this picture, for example?

You have an important brief or memo to write. You master the facts, research the law, marshall your thoughts, write your argument, revise your writing, and end up with:

Smith

FERNCO

Your argument may be correct, even path-breaking and brilliant, but have you communicated it? Probably not, because you haven't written at the proper level of ignorance.

Where does this difficulty in communicating come from? There are many sources, but one important one is the human tendency to define the world from one's particular and peculiar point-of-view. That is, most of us treat ourselves as the baseline: tall people are people who are taller than us, short people are people who are shorter than us, old people are people who are older than us, young people are people who are younger than us, etc.

Whatever the consequences in life of considering yourself to be the baseline, the consequences can be devastating in trying to explain a subject in which you have made yourself an expert. In my law-school course on personal income taxation, for example, the professor was an expert -- wrote the book, in fact. The professor would spend class criticizing "those silly men on the Supreme Court" (they were all men in those days), while I was still trying to figure out why someone would want to lose money on a transaction. I know I was being taught by an expert, but it would have helped me if he had been at my proper level of ignorance.

Similarly, before you mastered the facts, researched the law, and marshalled your thoughts, you started from a certain level of ignorance. Your becoming expert in the facts and the law took time -- a week, a month, maybe even years. Now, your reader is starting from his or her own particular and peculiar level of ignorance. To communicate with your reader, you need to write as close to that level of ignorance as you can.

How can you determine the proper level of ignorance? Since you can't read your reader's mind, there is no foolproof way. Nevertheless, there are some factors you can weigh to determine the proper level of ignorance:

How much exposure has your reader had to the case and how recent and intense was that exposure? A judge who has had no exposure to the case is starting at square one -- Is Smith the plaintiff or the defendant? Is this a personal-injury case or a will contest? Even if the judge has had some exposure to the case, that expertise will vary with how recent and intense that exposure was. A judge who ruled on a discovery motion two years ago and a judge who spent all last month presiding at the trial and is now ruling on post-trial motions have both been "exposed" to the case, but their levels of ignorance are vastly different.
Is your reader part of an expert body? Judges in administrative agencies, in specialized courts, or in specialized divisions of courts (e.g., probate, juvenile, post-judgment) develop expertise in their fields and on their governing statutes. Your reader's level of expertise on the Illinois Human Rights Act, for example, will differ if you are taking a Request for Review to the Human Rights Commission or a constitutional challenge to the U.S. District Court. Judges on courts of general jurisdiction tend to become expert on "typical" cases (e.g., auto-accident cases in whatever division of your local court handles that type of case), on the Court's local rules, and on "typical" procedural matters.
How long has your reader been in his or her current position? Even if your judge is in a position that would seem to give him or her some expertise, being new on the job may mean that that expertise has not yet developed. A new bankruptcy judge, for example, may never have handled a bankruptcy and may be frantically reading Collier's in between sessions. A new judge may welcome a full explanation of basic points while an experienced judge is more likely to welcome such an explanation being truncated or even omitted.
Has your reader had any particular and peculiar experience that would raise his or her level of ignorance? It's always possible that your judge handled such cases before in practice or on the bench or has written about them. Lexis and Westlaw searches and manual review of sources such as The Almanac of the Federal Judiciary and The American Bench can give you an idea whether your judge has any special expertise. Your experience and that of your friends and colleagues before the judge can do the same.

Once you determine the proper level of ignorance, write at that level without talking down to your reader. Helpful techniques for doing that include:

Use the power of pigeonholing to introduce your reader to the case. The mind of a reader who comes to a case cold craves some way to organize all the material that is being thrown its way. This craving should be met by pigeonholing -- that is, giving the reader's mind a category in which to place the materials. The pigeonhole should help call to mind relevant law and typical facts. Depending on the proper level of ignorance, the pigeonhole can be technical (e.g., "This is a retaliation case under § 6-101 of the Act") or almost layman's sounding (e.g., "This is an autoaccident case"). If the issue is primarily procedural, the case should be pigeonholed that way (e.g., "this is a case concerning the scope of discovery"), while a case that turns on the substance should be pigeonholed that way (e.g., "this is a securities-fraud case"). If you want the court to grasp essential facts quickly, the case can be pigeonholed that way, too (e.g., "This is an auto-accident case growing out of an intersection collision".)

Of course, pigeonholing not only helps the reader to organize the materials that he or she is about to receive, but also can be a very persuasive tool to the extent that the materials will be organized in your categories.
Identify your characters. If your reader's level of ignorance is at the "Is Smith the plaintiff or the defendant?" stage, be sure to help your reader out. Let the reader know who is who. Functional descriptions (e.g., "the Supervisor", "the passenger") can help in this regard. As we'll discuss further in connection with writing factual arguments, if the functional description reinforces your conception of the case, so much the better.
Explain the importance of your points. Why are you discussing a case or some facts? Depending on your reader's level of ignorance, you may want to explicitly explain that it's the leading case, or the Supreme Court's latest word on the subject, establishes an element of the cause-of-action, etc.
Use clear transitions. Similarly, why has your discussion gone from point A to point B? Depending on your reader's level of ignorance, you may want to explicitly explain that your opponent has to prove not only A, but also B, that you win even under the minority rule, etc.
Avoid shorthand and jargon. What is the FERNCO court's interpretation of Act § 8(a)(3)? I never understood it myself.

Remember: the proper level of ignorance is the closest thing to bliss.

One example of writing at the proper level of ignorance is writing a good factual argument. We have all been told, whether during law school in legal-writing classes or since graduation at continuing legal education seminars or in books, that stating the facts is crucial, that a judge should be ready to decide in our favor after reading our statement of facts, and so on. But how do we state the facts that well?

To state the facts well, we must not only write at the proper level of ignorance, but we must also realize that the Statement of Facts is an implicit argument. What is an implicit argument? Any argument, whether implicit or explicit, is an answer to the question "why". Why should your child finish the homework due tomorrow? Why should your boss give you a raise? Why should the jury disbelieve that witness? Why should the judge exercise his discretion in your client's favor? Why should the appellate court extend that principle of law? The answer to these and other "Why?" questions is an argument.

If the answer to the question "Why?" takes the form "because" -- because, appellate court, precedent, public policy, and logic demand it; because, jury, he was contradicted by three disinterested witnesses and crossed his fingers when he took the oath; because, my child, if you don't you not only will you fail to learn, but other bad consequences will ensue -- then the answer is an explicit argument, that is, an argument that explicitly gives a "because" in answer to the question "Why?".

In the Statement of Facts, however, we are not allowed to argue explicitly. So what do we do? We argue implicitly.

What is an implicit argument? Just as an explicit argument is one that explicitly states the becauses, an implicit argument is one that does not explicitly state a because in answer to the question "Why?". Rather, an implicit argument arranges and emphasizes the facts to lead the recipient of the argument to the desired conclusion.

Do people make implicit arguments? All the time. If you have ever told a story about a run-in you had and, in the telling, concentrated on your motives, your good-faith, and your side of the story, so that anyone hearing your story would conclude that you were in the right, then you have made an implicit argument.

We can do the same thing in a Statement of Facts. Of course, in real life, implicit arguments often shade into innocent or not-so-innocent fabrication, such as when the storyteller's comebacks are snappier and the other person's responses are stupider than actually happened. In a brief, however, ethics, rules of court, and fear of the opponent's response should prevent fabrication. Rather than fabricate, the briefwriter must simultaneously tell the truth (as contained in the Record) while still arranging and emphasizing facts to lead the reader to the desired conclusion.

Such arranging and emphasizing of facts is one of the most important skills in legal writing. Like most skills, this one consists of both strategy (i.e., what you will write about) and tactics (i.e., how you will write what you write):

First, the strategy:

Determine the types of legal actors involved in your case. Legal actors come in five types: those that did nothing wrong, those that did something wrong, those that were wronged, those that are witnesses, and those that fit (or don't fit) into a particular legal test or construct. Determine what type of legal actor you are representing, what type of legal actor you are opposing, and what other types of legal actor are involved whose stories you may be able to relate, even if that legal actor is not technically a party (as the prosecutor can relate the story of the victim of the crime to the extent permitted by the Record).
Pick your theme. The theme should be determined by the substantive law and policy, by the emotional content of the situation, and by the types of parties involved.
Decide which party's story will best present your theme. (This is similar to what the novelists call "point-of-view".) Do not automatically assume that you will write the Statement of Facts from your client's point-of-view. In many cases, your opponent or someone else (again, for example, the victim in a criminal case) may be the best point-of-view for advancing your theme.

Then, the tactics:

Put the facts into context. Typically, this is done either by beginning the Statement of Facts with a short, perhaps teasing, introduction of the crucial facts, e.g.:
or by beginning the Statement of Facts with a oneor two-sentence introduction that is not facially argumentative, e.g.:
Enforce your conception of the legal actors by consistently referring them functionally, descriptively, or in terms that will bring to mind how you want them thought of. A person whose youth or immaturity you want to emphasize could be consistently referred to by his or her first name or nickname (e.g., "Mikey"), a person whose status you wanted to boost could be consistently referred to by "Mr." or "Ms." or a title, a person whose crucial aspect was the power to hire and fire could be referred to as "the Supervisor", a party that you wanted the court to think of as a massive business entity could be consistently referred to as "the Insurance Company" or "the Corporation", etc.
Maintain to the extent possible the point-of-view you have chosen. If necessary to maintain your point-of-view, you may even use the passive voice (horrors!) rather than the active.
Emphasize those facts that are important to you. Remember that matters on which you spend a lot of time will seem important and matters on which you spend only a little time will seem unimportant. Make this Rule of Proportionality work in your favor, rather than against you. Traditional methods of emphasis include quotation from the record, extensive (rather than sketchy) description, and repetition. More innovative methods of emphasis include reproduction of exhibits (such as photographs or documents) and presenting facts in chart or graphic form.
Describe, don't characterize. (Or, as the novelists say "Don't tell 'em, show 'em.") This rule is a consequence of the maxim that the Statement of Facts is an implicit, not an explicit, argument. Thus, instead of characterizing testimony as: "Mrs. X was shocked when she received the telegram. (R. ...)", say:
Use one-word arguments to acknowledge and diminish your opponent's facts. Although explicit arguments are not permitted in the Statement of Facts, one-word arguments such as "although", "nevertheless", "however", and "even though" (I know, that's two words) are accepted. The beauty of these one-word arguments is that they meet your ethical responsibility to candidly state your opponents facts while simultaneously diminishing them:
Use facially non-argumentative headings to help enforce your conception of the facts. Headings can be used in the Statement of Facts, too. Although your headings will be facially nonargumentative, you should draft them to divide up the story the way you want it divided, emphasize the facts you want emphasized, and thus advance your implicit argument.

Two final points about factual arguments:

Along with the implicit argument in favor of your client, you are also making an implicit argument that you are a candid and trustworthy advocate. Since the Statement of Facts is probably your first chance to show the court that you are indeed candid and trustworthy, the Statement of Facts should contain extensive and scrupulous citations. Every fact must be cited -- and cited correctly -- or otherwise supported (e.g., by a footnote explaining that the court can take judicial notice, etc.) If the citation does not obviously support the fact, explain the citation or rework the fact. It only takes one or two miscitations or non-citations to lose the implicit argument that you are candid and trustworthy, and losing that argument is probably worse both for you and your client than losing the implicit argument on the facts.
The first job of any writer is to keep the reader reading. A Statement of Facts, like any other piece of writing, does you no good if it is not read. Therefore, make your writing interesting and easy to read.

In fact, if you do all this, you may want to submit a brief with no Argument section at all -- just the Statement of Facts --to see if all those writing instructors and writing books are correct. Let me know how it works!

As crucial as the facts are, the heart of most briefs and memos is an argument on caselaw, and the basic caselaw argument is an analogy to precedent. Yet, too many lawyers -- even lawyers who have properly researched and thought-out their arguments -- write poor, unpersuasive analogies.

A persuasive caselaw analogy is an explicit argument. Unlike an implicit argument, which we discussed in connection with Statements of Facts, an explicit argument replies to the question "why?" with the answer "because". In a caselaw analogy, that explicit "because" is usually stare decisis, i.e., "because that's what the court in the precedent did". This "because", however, is actually a combination of three different arguments, all of which must be defended and won. These three arguments are:

That your case resembles the precedent in all important respects;
That the precedent reached the correct result; and
That in your case, the court should reach the same result as in the precedent.

A good structure for your caselaw analogy is one that will enable -- or, better yet, force -- you to deal with all three combined arguments in the analogy. Of course, some of these arguments are more difficult than others. For example, if the precedent is binding on the court to which you are arguing, then the second argument (that the precedent reached the correct result) is made by the citation. If, however, the precedent is just persuasive, rather than binding, even that argument needs to defended and won. Similarly, the third argument (that the court in your case should reach the same result as the court in the precedent) is often made by the citation, but may also need to be defended and won if the authority is just persuasive or if the authority, even if is binding, may not be applied, as when conflicting lines of precedent exist.

Let's begin thinking about what would be a good structure for caselaw analogies by analyzing examples of poor structure. (In these examples, I'll use a false-imprisonment case. I'll also assume that you're the author of these examples. Forgive me, but you and I are just talking in private, anyway.)

A common type of poor structure is citing your facts to the precedent, e.g.: "In our case, plaintiff was confined by a muscular man wielding a knife with a seven-inch blade. Smith v. Jones." A related type of poor structure is citing your conclusion to the precedent, e.g.: quot;Plaintiff wins our case because his fear was reasonable. Smith v. Jones." Either example can be exacerbated by string-citing, e.g.: "In our case, plaintiff was confined by a muscular man wielding a knife with a seven-inch blade. Smith v. Jones, Otto v. Bismarck, Gerd v. Rundsted, and Helmut v. Krupp."

These types of structures are poor because they provide neither for an explicit "because" nor for an explicit discussion of the three combined arguments in an analogy. In the first type of structure, citing your facts to the precedent fails to explain your thoughts to the reader. The reader has to pull Smith v. Jones off the shelf (or retrieve it from the database), read it, and then think of the analogies that you have already thought of. In the second type of structure, citing your conclusion to the precedent does indicate that you think Smith commands the result you want, but does not tell the reader why. No explicit argument is being transmitted to the reader. It's like the old definition of a college lecture: "a process by which information is transferred from the notes of the professor to the notes of the students without passing through the minds of either". Both these flaws would be exacerbated by a string cite. You may just have well have given the reader a list of relevant cases and said "Go read these".

Further, in both examples, a reader who actually pulls and reads Smith may discover that Smith is not on all fours with the case at bar -- and may feel cheated by the citation to Smith, even to the point of thinking that you were trying to pull a fast one. Of course, if Smith was on all fours, then you did a poor job of pointing that out. Finally, the bare citations to Smith left you wide open for your adversary to forcibly brings to the court's attention what (in your adversary's view) you omitted, with the expressed or implied conclusion that a candid advocate would have disclosed these differences upfront, rather than hiding behind an unexplained citation.

One subtle reason for the poor structure of these examples is that the precedents were treated as propositions of law rather than as sets of facts on which the courts reached certain results. If you've ever worked with law students or young lawyers, you know that treating a precedent as a proposition of law rather than as a result upon a set of facts is endemic to their writing. Of course, there are reasons for this: the casemethod teaches law students that cases stand for propositions of law and that divining those propositions is a lawyer's basic skill; many legal-research tools are great devices for discovering propositions of law, but poor devices for discovering the facts of the case; and, perhaps most important, thinking about analogies between cases is hard work.

In contrast to these poor structures, a good structure would force the writer to explicitly explain the "because" and the three combined arguments in an analogy. The following rules help ensure that the caselaw analogy is structured to accomplish these goals:

Compare facts to facts, policy to policy, and law to law: To be a little more precise, compare the facts in your case to the facts in the precedent, the policy you want to apply to your case to the policy in the precedent, and the law you want to apply in your case to the result in the precedent.

Like having a good follow-through in tennis or using parallel structure in sentences or making all subdivisions in an outline have at least two points, comparing facts to facts, policy to policy, and law to law is a rule that by maintaining proper form attempts to ensure that the substance is correct. Comparing facts to facts, policy to policy, and law to law forces the argument to analogize between analogous sections of the cases and also forces the argument to be more explicit, thereby conveying more of the your thoughts to the reader. Finding yourself comparing nonanalogous sections of your case and the precedent (such as comparing the facts in your case to the law in the precedent) is a warning sign to revise the structure of your analogy.
In comparing facts to facts, keep the level of abstraction as close as possible to the actual facts of your case and of the precedent: The facts in cases can be related at differing levels of abstractions. Our false-imprisonment case can be about a man named Joe holding a stainless-steel Chicago Cutlery boning knife on a man named Frank, about one man confining another man against his will, about a plaintiff committing the tort of false imprisonment against a defendant, or about man's inhumanity to man. When you are comparing facts to facts, the level of abstraction of those facts should be as close as possible to the actual facts, without sounding silly. For example: "In our case, Mr. Thomas was confronted with a muscular man holding a knife with seven-inch blade; in Smith v. Jones, Mr. Smith was confronted with a 'large' man waving brass knuckles under his nose. In our case, Mr. Thomas testified that he was 'terrified'; in Smith v. Jones, Mr. Smith testified that he was 'scared out of his mind'. In our case, Mr. Thomas was shoved into a closet and the door closed behind him; in Smith v. Jones, Mr. Smith was confined in a car."
Explain the importance of your fact comparisons by moving the level of abstraction to the structural facts of your case and of the precedent: The structural facts are the facts as you think they are legally relevant. It is roughly equivalent to, but slightly more concrete than, the elements. By moving to the level of the structural facts, you explain the importance of the fact-to-fact comparisons you just made. For example: "Thus, both our case and Smith v. Jones involved a confrontation with a menacing person in circumstances in which the menace was both subjectively felt and objectively reasonable."
Analogize the policy in the precedent to the policy you want to apply in your case and the law in the precedent to the result you want to reach in your case: Once you have made the factual comparisons and explained their importance at the structural level, analogize the policy and the law. For example: "The court in Smith v. Jones said that a person should not have to risk a beating or put life and limb in danger to test whether he is truly imprisoned. That policy applies to our case, too, because the law does not require Mr. Thomas to risk a knifing any more than it required Mr. Smith to risk a beating. The court in Smith v. Jones found that Mr. Smith had been falsely imprisoned, and that same result should be reached in our case."
Explain why your case is an even stronger one for the result you want than was the precedent: Emphasize the strengths of your case and explain why it is even better than the precedent. For example: "If anything, our case is even stronger than Smith v. Jones, because a knife with a seven-inch blade, which is what Mr. Thomas was facing in our case, is more deadly and more terrifying than the brass knuckles Mr. Smith faced in Smith v. Jones."

The structure suggested here forces you to fill out your analogies, which gives them a fighting chance to be persuasive. Of course, sometimes not even the best analogy helps. As one judge said when the case before him was analogized to a precedent he himself had written, "Well, that was the year I had a stupid law clerk!"

In addition to writing caselaw analogies, another important skill is to analyze your and your opponent's arguments. One of the best helps in analysis is the presence of red flags. In one famous case, the Inspector was discussing the case with the consulting detective from London.

"Is there any point to which you would wish to draw my attention?", the Inspector asked.

"To the curious incident of the dog in the night-time."

"The dog did nothing in the night-time."

"That was the curious incident," remarked Sherlock Holmes.

To one with the observing skills and reasoning powers of Sherlock Holmes, the absence of something that should have been present is a red flag. In the story "Silver Blaze", the absence of barking by a guard dog that was present was the red flag that led Sherlock Holmes to realize the police theory about the case was wrong. As legal writers, we don't get to be Sherlock Holmes -- hell, we don't even get to be Perry Mason -- but we too can and should look for the absence of things that should be present. And, like Holmes, when we realize that something that should have been present is not, we can use that absence to test our and our opponent's theories.

This is not a new insight for lawyers, of course. Trial practice abounds with both law and war stories concerning the red flags raised by that which should have been present, but was not -- the absent document, the absent witness, the absent party, etc. Yet, when lawyers put on their legal-writing hat, they often don't realize that red flags are still important. Red flags not only enable us to test our and our opponent's theories, they also give us powerful arguments to make to the court.

Sometimes, we become aware of red flags because a sixth sense tells us that something is wrong with a piece of legal writing. Perhaps you're reading a brief, and the argument sounds good, but something you can't put your finger on just seems a little off. Chances are that your lawyerly subconscious has picked up on a red flag. Other times, like Holmes, we explicitly search for red flags by analyzing what should be present but isn't. But whether you use your subconscious, your analytical skill, or a combination of both, you should be alert for the following common red flags:

Important statutory or contractual words that are not quoted. Most legal writing is about words -- statutes, contracts, testimony, precedents, etc. Sometimes, as with statutes or contracts, the words used take on technical importance. Nevertheless, experience and observation show that a large proportion of arguments about the interpretation of a statute, a contract, or other pieces of technical writing avoid quoting the words at issue. Since we can't read minds, we can never be certain why the legal writer chose to avoid quoting the actual words, but, since the actual words would seem to be against the legal writer about 50% of the time, the writer may have deliberately or unconsciously chosen to draft his or her argument to avoid them. Thus, in a case in which the interpretation of a statute, contract, etc., is at issue, any failure to quote the actual words in the argument is a major red flag.

This red flag can be well-hidden by skillful argumentation. If, for example, you're reading a argument about the interpretation of a statute or contract and, as discussed above, can't put your finger on what is wrong, it may be that you're picking up on the red flag of the statutory or contractual language not being quoted. Go back and check the argument. Is the crucial language being quoted or is it just being characterized?

This red flag of avoiding technical language is intensified when the legal writer is making the increasingly-popular "plain language" argument. If the plain language supports the legal writer's position, then that plain language should be emphasized, not avoided. Similarly, if a conclusion about the language used is clear or obvious, that conclusion can be better demonstrated by using the words of the statute than be saying "clearly" or "obviously".
Non- or quasi-technical language -- such as precedents or testimony -- that is characterized. This red flag is similar to, but perhaps somewhat less glaring than, the previous one. Just as legal writers avoid technical language that is against them, they also avoid non-technical or quasi-technical language that is against them. Precedents and testimony, for example, are often characterized rather than quoted. Of course, legal writing that was nothing but an endless parade of block quotes would be unreadable. Nevertheless, if a piece of legal writing seems heavy on characterizing testimony and precedents and light on quoting them, go back and check. The author may be writing around a problem.
Important cases that are discussed without any factual context. In much legal writing these days, important precedents are treated as propositions of law rather than as sets of facts on which the courts reached certain results. Among the reasons for this phenomenon, as we noted in discussing caselaw analogies, are that the case-method teaches law students that cases stand for propositions of law and that divining those propositions is a lawyer's basic skill, that most legal-research tools are great devices for discovering propositions of law, but poor devices for discovering the facts of the case, and that thinking about analogies between cases is hard work.

For purposes of our present discussion, however, a legal writer's discussing important precedents as pure propositions of law, without any factual context, may be the result of the legal writer trying to write around the problem that the facts of the precedent differ wildly from the facts of the writer's case. Such running from the facts of the precedent is a major red flag that is always worth investigating.
Ellipses or brackets in quotes. Do the quotes your reading seem to have those enigmatic dots (".....") or brackets ("[]")? The legal writer may just be making the grammar of the quote fit the text or omitting a citation or excising something that is clearly irrelevant, but then again, who knows? All quotes are worth double-checking, of course, but ellipses and bracket are more -- they are red flags that something may have been altered or that something is being kept from yours and the judge's attention. Even if the ellipsis is just an omitted citation, it may be that that cite was omitted not for readability, but to keep something from the reader's eyes.
A trend or a majority supported by a single citation. A statement like "most courts hold" or "the overwhelming weight of authority is" or "the modern trend is" or "the majority rule is" supported by a single citation is a red flag. It is possible, of course, that the citation will state what the trend or majority rule is. On the other hand, the statement of "most courts hold", etc., may be wishful thinking -- or worse! -- on the part of the legal writer. All such statements should be checked out.
Citations that seem unusual or weird on their faces. Something may seem wrong with a citation on its face. Citations to newspaper or magazine articles, student notes and comments, state cases on federal questions, federal cases on state questions, out-of-jurisdictions cases, dissents, concurrences, law review articles, etc., are all red flags.
Unusual brevity or length. The final red flag is the length of the argument. Lawyers have a general sense of how long an argument should be. If an argument seems unusually short or long, the author may be writing around a problem -- either by ignoring important issues or by burying the problem in irrelevancies or verbiage.

If you find a red flag, you should do the following:

First, determine if the red flag really is a red flag. Maybe there is a legitimate reason for what would otherwise seems to be a red flag (most ellipses and brackets fall into this category) or maybe the red flag is just poor writing by your opponent, but nothing you can make use of.
Second, if the red flag is in your own writing or the writing of someone on your side, use it to analyze the quality of your argument. If, for example, you find yourself making a "plain language" argument without quoting the plain language, perhaps you should recast your argument to rely on "intent of the legislature" or "legislative history" or some stupid interpretation by some other court. [If nothing seems to help, however, then maybe you should rethink your litigation strategy.] Similarly, if you find yourself relying on cases as pure propositions of law, then maybe you should force yourself to think hard about the factual analogies or force yourself to explicitly make the argument that, even though the facts in the precedent are different from the facts in your case, the precedent still should be followed for very good reasons.
Third, if the red flag is on the other side, consider explicitly and forcibly bringing it to the attention of the court. Arguments that do so can be devastating:

Remember, pay attention to red flags and you may force your opponent to wave the white flag. At any rate, you'll be ready to reply to your opponent's argument. When we reply, we often want to start out with something like:

"I'm rubber and you're glue. Whatever you say bounces off of me and sticks to you."

Well, maybe it was easier in third grade, but, as lawyers, we still spend a lot of time responding to arguments. We have to come up with better responses than the ones we used in third grade, however, even if the third-grade responses were more viscerally satisfying. Coming up with better responses, however, can be hard work. Luckily, there are some good guidelines for responding to arguments that make our task as lawyers easier, or I wouldn't be writing this atricle.

The two basic guidelines are that the best response is a good affirmative argument and that the response should emphasize what we think is important in a case, while still replying to our opponent's arguments.

As to the best response being a good affirmative argument, when Justice Jackson was Solicitor General of the United States, so the story goes, he asked one of the Assistant SG's how work on the government's brief was coming in an important Supreme Court case. The assistant replied he was waiting for the opponent's brief, because the government was the Respondent. "What's the matter?" asked Jackson, "Don't we have a case?".

The moral of this story is worth remembering and putting into practice. Your affirmative argument should always be your strongest response. Ideally, your affirmative argument would be such a complete and devastating response as to make your opponent's argument looks like quibbling or desperation. Refuting your opponent's argument, after all, only says that your opponent doesn't deserve to win -- it doesn't say that you should win. We should always give the court an affirmative reason why we should win. Even parties that technically don't have to win (like criminal defendants or parties relying on the burden of proof or the standard of review) do much better if they show the court why they should win. And if you don't really have an affirmative argument, then your negative argument should be phrased as affirmatively as possible.

As to organizing the response to emphasize what we think is important in a case, while still replying to our opponent's arguments, the easiest way to accomplish that is to remember and put into practice the Rule of Proportionality, which is that things seem important or unimportant according to the emphasis or lack of emphasis we give them.

There are some basic methods for putting this Rule of Proportionality into effect to emphasize what we want in our responses:

Place your affirmative argument at the lead points in your outline (at all levels): To emphasize your affirmative argument, you should probably lead with it both in your response as a whole, and in each sub-response, each sub-sub-response, etc.

Here, an outline is a quick and easy check on the Rule of Proportionality. If your strongest, affirmative point is roman numeral III (B) (2) (c), then you are not giving it proper emphasis. Your strongest, affirmative point should be roman numeral I. Similarly, in responding to a particular argument (say argument II), then your strongest, affirmative point on that argument should be roman numeral II (A).

A wonderful example of this use of outlining your response to take away your opponent's control of the order of arguments and to emphasize your affirmative arguments was related by Col. Frederick Bernays Wiener, late of the Solicitor General's office, in his classic (and lamentably out-of-print) book Effective Appellate Advocacy (Prentice Hall 1950). In that book, Col. Wiener tells the story of the Douglas Chandler radiobroadcasting treason case [Chandler v. United States, 171 F.2d 921 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949).] Douglas Chandler resided in enemy territory during World War II and was accused of committing treason by making radio broadcasts for the enemy during that conflict. He was captured at the end of the war and brought back to the United States for trial. Chandler's trial took place in the District of Massachusetts, where he was convicted.

On appeal, Chandler's court-appointed lawyers thought his strongest points were procedural, so they outlined their argument as follows:
1. The court should not have exercised jurisdiction over the person of the defendant.
2. The court lacked jurisdiction of the crime alleged, for:
  1. Congress has not by law directed the place of trial of crimes committed within the territorial jurisdiction of a foreign government.
  2. If Judicial Code, Section 41, is construed as applicable, the District of Massachusetts was not that into which the defendant was first brought.
3. The indictment was duplicitous. .....
Only with roman numerals V and VI did Chandler's lawyers reach the substantive issues of whether treason had been committed.

The Government, however, thought that its best points were the actual commission of the substantive offense, so its response was organized as follows:
1. The indictment charged and the evidence established the crime of treason:
  1. Broadcasting propaganda on behalf of an enemy is a treasonable act.
  2. The overt acts were acts which gave the enemy aid and comfort. .....
2. Congress has made treason committed abroad an offense and Congress has constitutional power to do so.
3. Appellant was lawfully apprehended and lawfully brought within the jurisdiction of the district court.
4. The District of Massachusetts was the proper forum for appellant's trial.
One caveat here is that I've heard some judges complain in seminars, in writings, and in open court that a response was organized differently than the argument to which it was responding. Since the basic principle of persuasion is to avoid unnecessarily annoying your audience, should we organize our responses to follow our opponent's arguments point-bypoint to avoid annoying such judges or should we organize our responses to emphasize our strongest affirmative points?

This is a tough question, but my advice is: organize your response to emphasize your positive argument, unless you happen to know that that will run into a pet peeve of your particular judge. Our judges should be able to handle the mental gymnastics of realizing that our point III responds to our opponent's point I. And it seems to me that if the risk of annoyance is merely theoretical (as opposed to knowing that it drives this particular judge crazy), then that risk pales besides giving your opponent control of the order of arguments.
Use footnotes judiciously: In distinction to the outlining we've just been discussing, footnotes break out of the strict body of the outline and out of the textual flow. The tricky point is that, by so doing, footnotes can either emphasize or deemphasize the point they contain.³ Generally speaking, if you have a very persuasive response to an argument, placing that response in a footnote can further deemphasize the argument to which you are responding. On the other hand, if your response is not so persuasive, then placing it in a footnote, apart from all the other text, may only emphasize the inadequacy of your response.
Give minimum context to your opponent's argument: An important method for giving proportional deemphasis to your opponent's arguments is to avoid repeating or explaining them. If you repeat your opponent's argument, you are, of course, just letting the court read it for a second or third time (not unlike repeating the direct examination if you're doing a cross.) Explaining the opponent's argument can be even worse: One of my first assignments as a lawyer was drafting a response to an argument. The opponent's argument didn't seem very well drafted, and I really didn't understand it, so I thought about it and puzzled it out, until I finally understood it. After I drafted the reply, I was called in the senior partner's office. "You know what I think about this?", the senior partner said. "No, what?", I answered, expecting to be praised. "You explained their argument better than they ever did!", he yelled.

Of course, we need somehow to put into context what are response is all about, so the trick is to refer to your opponent's argument without repeating or explaining it. The best method is to give the minimum context necessary to let the court know what you are responding to. That means reducing your opponent's argument to a word or phrase. Thus, instead of arguing, for example, "Our opponent argues lack of notice, citing Jones and Smith, and arguing that blah, blah, blah was not blah, blah, blah, but there are more recent cases, such as....", just refer to the argument. Better would be "Our opponent's lack-of-notice argument is refuted by the recent cases of ...." Even better, lead with your affirmative point and write: "The recent cases of X, Y, and Z refute our opponent's lack-of-notice argument". That brings up another point:

Make your best point lead your sentences: Just as your best affirmative argument should lead your response, so should your best affirmative point in any refutation, to the extent possible, lead any sentence.
Consider emphasizing points of agreement: Under the Rule of Proportionality, if you agree with your opponent on various points, then you have captured much of your opponent's argument and focused on what is important to your argument. Thus, sometimes, you want to emphasize points of agreement, then focus on your points. For example, some arguments beg for the following type of response: "The parties agree on practically everything about this case. They agree that Smith v. Jones is the controlling law, and that that case sets out four elements. They agree that the first three elements have been met. Their only disagreement is about the fourth element." Then spend the rest of your response on the fourth element. The Rule of Proportionality will make your argument on that fourth element seem all-important.

Two further points should be made about responding to arguments. First, should you respond in advance, that is, should you anticipate arguments? This is a tricky question. Generally, if the court will think you're avoiding something by not discussing an argument, you should respond in advance. Similarly, if you have a crushing response to an argument that you know is coming, you may want to respond in advance. Other than these situations, however, anticipation is better in life than in law.

Finally, we should avoid sarcasm. This is easier said than done. I know that the temptation to take a shot at the snivelling illogic of your opponent is often more than flesh can resist -- particularly if your opponent has been sarcastic himor herself. Write your sarcasm into your first draft if you must, circulate it around the office, but then delete it. After all, we are no longer in third grade, and there are other senses of proportion that we need to maintain.

Remember these points and put them into practice, and you should become a more persuasive legal writer.

¹David L. Lee is a partner in Tomes, Lee & Dvorak, in Chicago and Kansas City. His practice is concentrated in employment law and appeals.

²Earlier versions of the material in this article were published in the Chicago Bar Association Record and are reprinted with permission.

³For example, is this footnote emphasized or deemphasized?

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