The Winning Brief

The Winning Brief:  100 Tips for Persuasive Briefing in Trial and Appellate Courts, Second Edition, Bryan A. Garner, Oxford University Press, 2004 516 pages $50

Review by Heidi Boghosian

They may not know it, but most lawyers have already mastered the essentials of legal persuasion by adolescence. Young advocates pleaded their case when they asked their coach for more playing time on the field or court. Game plan: present the facts favorably and convincingly (“If you give me more playing time, I’ll study harder.”); draw on precedent (“The one time I played the entire game, we won.”); consider the opponent’s arguments (“Yes, I injured my foot but the doctor says it’s as strong as ever.”).

Yet lawyers often have a difficult time writing to influence. After all, they also learned how to give law examiners, law professors, and bar examiners the answers they were looking for. But most attorneys fail to marshal their talents to construct a compelling legal brief.  Judges assert that well-written briefs rarely cross their desk. While most legal writing books devote sections to writing legal briefs, no authoritative text really delves deeply into this murk of how to persuade judges through effective writing.

Coming to the rescue is Bryan Garner, a preeminent authority on legal writing, with the second edition of The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts. After developing and touring nationally with a continuing legal education course for brief-writers, Mr. Garner whittled his suggestions to 100 tips that address the dearth of written materials on brief-writing.

The inclusion of non-traditional writing hints makes this a notable anthology. Mr. Garner treats with equal respect all aspects of constructing effective briefs, from the practical (Tip #10, “limit your issues to 75 words apiece”), to the seemingly sublime (Tip #100, “Remember the importance of ethos”). Mr. Garner quotes John R. Trimble, author of Writing with Style, and others in explaining that a writer’s character comes through loud and clear in his or her writing style; such a sense of personality is often more persuasive than the best legal argument. “If you don’t persuade them to accept you, it’s doubtful that you’ll persuade them to buy the ideas you’re proffering.  We buy from people we like and trust—it’s human nature.”  Another tip encourages readers to dispel “common superstitions that will handicap you as a writer,” such as never ending a sentence with a preposition—one of the many “superstitions” that often result in stilted, unconvincing constructions.  These are the kinds of morsels of knowledge that we hope for from a respected mentor or an extraordinary teacher.

Not strictly academic, the guidelines are often inventive and peppered with real-life examples to keep readers’ eyes on the prize. Tip #99 suggests using focus groups to evaluate draft briefs, with mock judicial readings. Most writers often run drafts by colleagues or friends, or even read passages out loud to them, but who has ever had the ingenuity to organize and pay for a focus group?  It’s a terrific suggestion. Garner describes an instance in which a law firm used a focus group in planning its appeal after a client received a multimillion-dollar judgment against him. They lost their appeal to the focus group by a 4-1 vote

“The client and the lawyers—having lost—were ecstatic.  They had discovered how to rewrite the brief in a way that would allay the judges’ concerns.

That’s precisely what they did.  They won their appeal in a unanimous decision.  They had erased a huge judgment.  And they had learned the value of mock judicial readings.”

“Counter the Rambo writer with the deflating opener,” (Tip #72) offers guidance to those whose opponent “is trying to lay waste to you or your client.”  An example of how to counter such tactics without getting down and dirty is to compile “the worst rhetorical outbursts from your opponent, recite them in summary form—not characterizing them too much, but quoting them word for word—and then move above and beyond.”

Readers enter the boxing ring in Tip #88, which advises structuring the argument section as a dialectic, in order to deal effectively with counterarguments:

In using a dialectical argument, be sure that you don’t start either of two unhealthy syndromes.  First, avoid setting out the opponent’s points at great length before supplying an answer.  Your undercut needs to be swift and immediate…the poor strategy [is] highlighting the opponent’s argument…. Second, ensure that you’re answering only the most obvious points against you—avoid tipping off the other side to an argument it hasn’t yet understood.

Depending on the temperament of the reader, The Winning Brief may have one drawback. Impatient attorneys without much spare time may find it too exhaustive to tackle. Mr. Garner defies one of his focal tips (Tip #91), which urges writers to “Visualize the Reader. Assume an intelligent, impatient reader who knows nothing about your case—assume neither an idiot nor a genius.” For hurried litigators in that category, this book is simply too long a practitioner’s reference—about 200 pages too long. It is cumbersome to unearth the heart of each tip. The three-part structure of most chapters is part of the reason why: quotable quotes precede the explanations, which are followed by before- and after-examples. How-to books should be direct and concise. Each tip could have been presented successfully in a two-prong structure, eliminating the quotable quotes.

Many readers may feel cheated of Mr. Garner’s because his explanations of the tips are often overpowered by these quotes. In fact, many quotes occupy more space than the explanations. Some quotes even have internal quotations; a few quotations contain subheads. More convincing were the tips in which Mr. Garner’s explanations were more in-depth.

The explanation section also has occasional bouts of overkill. Tip #48 (instructing to use “but” instead of “however,” to begin a sentence, moving “however” inside the sentence or collapsing the preceding sentence into an “although” clause) begins with 11 quotable quotes, an eight-sentence explanation and examples of good legal writers starting a sentence with the word “but.” In Chapter 58, “Hyphenate your phrasal adjectives,” examples from the New York Times and the Wall Street Journal are followed by a longer section of examples of common phrasal adjectives in legal writing.  It is not clear why the newspaper examples are included, as they contain redundancies from the longer list. 

These criticisms aside, The Winning Brief is a thoroughly invaluable and original reference for lawyers who want to win. It deserves a spot on every litigator’s bookshelf next to another of Mr. Garner’s frequently used editorial handiworks, Blacks Law Dictionary.