I just finished a three-week trial, and it reminded me how well the principles of good briefwriting apply to trial practice.

  1. Don’t waste their time. In post after post, I’ve stressed the importance of getting to the point and not wasting the judge’s time. The same applies to the jury at trial. If it doesn’t advance a core issue, you should probably jettison it, whether we’re talking about a sentence in opening or closing or a question to a witness.
  2. Be explicit. When you write, you should be very clear about what you’re asking for and why. Don’t wait until the end (or even until the argument section) to explain. This is just as true at trial. Don’t save up points to explain in closing; explain them, in your opening statement or through a witness, right now.
  3. Stick to your themes. Before you start any brief, you should be able to write down your three or four trial themes on an index card, and the brief should then advance at least one of them. At trial, make sure that the jurors could fill out your index card at the end of opening, and that every witness examination advances one or more of the themes.

Where is the poetry?

Hirschhorn v. Auto-Owners Insurance Policy is a case about bat poop. The Hirschhorns say that they had to abandon a summer home because of the overwhelming odor created when large numbers of bats used the space between the walls and siding as a toilet. They filed a claim under their homeowner’s policy, which included a pollution exclusion disclaiming coverage for any discharge, release, etc. of pollutants. The battle between the parties – which reached the Wisconsin Supreme Court – was over whether bat poop is pollution. Auto-Owners argued that it was, and the Hirschhorns that it wasn’t.

Maybe insurance litigation is normally dry stuff, and maybe it eventually wears out one’s sense of the picturesque. But these facts stink to high heaven, and the litigants should not have missed the opportunity to capitalize on that. The Court of Appeals set them a good example, holding, among other things, that “when a person reading the definition arrives at the term ‘waste,’ poop does not pop into one’s mind.” But here’s a typical paragraph from Auto-Owners’ brief:

Given the broad warning of the pollution exclusion in Auto-Owners’ homeowner’s policy, a reasonable insured would not read the exclusion as limited to industrial refuse. This is so because a “penetrating and offensive odor” emanating from bat guano satisfies the definition of “pollutant” in the policy on two separate bases.

Yawn. We can do better than that. Five minutes of research reveals (if you did not already know) that:

  • Guano is animal waste.
  • Guano contains ammonia and phosphates, among other chemicals.
  • Guano was long used in industry, both to manufacture fertilizer and gunpowder. Guano islands were prized possessions and nations have fought battles over their ownership.
  • Guano emits ammonia gas and other hazardous fumes.

To be sure, a humorous tone is probably inappropriate for an insurance company who has denied coverage to a family that was forced out of their home. But the argument certainly could have been made more compelling. One example:

The exclusion covers both “liquid…irritant or contaminant…waste” and “irritant or contaminant…gasses.” Bat guano is waste—animal waste—and is unquestionably a liquid contaminant that also released irritating and contaminating gasses. The Hirschhorns say that left their house because the fumes were irritating and because they had contaminated their possessions. They try to distinguish between industrial pollutants and “natural” ones, but the distinction is possible only because the modern chemical industry has come up with substitutes for the guano supplies that used to fuel industrial manufacturing of chemical fertilizers and explosives.

Also, of course, just mentioning in the fact section some of the colorful history of human use of guano would have gone a long way towards making the briefs memorable, and thus inducing judges and clerks to read them with attention.

The Lawyer’s Ode To Spring

This is The Lawyer’s Ode to Spring, as published in the newspaper The Daily Alta California on June 7, 1886.

Whereas, on sundry boughs and sprays

Now divers birds are heard to sing;

And sundry flowers their heads upraise

Hail to the coming on of Spring!


The songs of the said birds arouse

The memory of our youthful hours,

As young and green as the said boughs

As fresh and fair as the said flowers.


The birds aforesaid, happy pairs!

Love midst the aforesaid boughs enshrines

In household nest, themselves, their heirs,

Administrators and assigns.


O, busiest term of Cupid’s court,

When tender plaintiff’s actions bring:

Season of frolic and of sport,

Hail, as aforesaid, coming Spring.

The story immediately following, by the way, does a fine job of reminding us how to jump right into the action and thus make your writing interesting. Journalists, whose writing competes with many other pieces on the same page, not to mention other newspapers, learn this well: lawyers should take it to heart also. Here’s the first sentence of the story:

On the Upper Colombia river not long ago a settler had a desperate fight with three drunken Indians in a cellar and killed them all.

Go ahead and click the link above if you’d like to read the rest of the story, and think about the fact that the opening lines of your brief should have a similarly compelling effect. Your facts are probably not quite as interesting, but do your best with them.

Anna’s trophy

Anastrophe is a rhetorical device in which the noun and adjective are swapped from their normal positions, as in “star light, star bright.” Lawyers are more used to such things than they may think, as many of the terms of our trade are anastrophic, like “accounts receivable.”

Good writers have anastrophe in their tool box (most without knowing the word), and will use it—sparingly and deliberately—when a sentence calls for it.

The failure of the earthen dam was much more than just a movement of some soil caused by Pearson’s negligence. It was for the Brubakers a failure catastrophic, devastating, and life-changing.

Don’t whine

Maybe your opponent didn’t include with their brief a certification that they met and conferred with you before filing their motion. Maybe they went half a page over the page limit. Maybe they filed electronically 45 minutes after midnight on the day the brief was due. Maybe they did all of those things—but you are not likely to score any points with the judge by saying so in your brief.

I have in front of me a rather routine motion: a motion to a federal appeals court asking for leave to file a reply brief in support of a petition to appeal. The petitioner stresses how short her proposed reply brief is (which she attached) and how promptly she filed it. But the petition for leave to file goes on for three pages (not including the caption/cover page), with a third of the first page devoted to pointing out that the respondent filed its opposition a day late. “Plaintiffs/ petitioners” went on to say that they “do not oppose this Court’s consideration of the Opposition as though it had been electronically filed in a timely manner.”

Then why are you wasting precious first-page real estate telling appellate judges that a brief was filed a day late? If they care, the clerk’s office will have told them about it (and probably handled it themselves). If they don’t, they won’t start to care because you mentioned it. What they almost certainly won’t do is think “How fair and magnanimous is the petitioner, and how slipshod the respondent! We will do what the petitioner asks me to do, as soon as she gets around to telling us what that is.”

If you’re going to argue that your opponent should suffer some penalty for violating a rule, then do so with zeal. Explain why it matters. Maybe explain, with backup, how your opponent has not yet met a single deadline in the case and should at some point have a brief stricken for it. But don’t just stick in a footnote (or, worse, a whole paragraph on page one) for the purpose of whining about a rule violation that you are not prepared to ask the Court to enforce with the full weight of your ethos and credibility on the line.

And, by the way, when one of your selling points is the brevity of your briefing, take the extra time to demonstrate it. Ask for leave to file your very short reply in one page.

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