A TOC like a sawed-off shotgun

I’ve said many times here that the best way to argue your case is with simple and direct language. Here’s a good example from a current Solicitor’s General brief before the US Supreme Court. The SG’s job here was to argue that a felon’s possession of a sawed-off shotgun counted as a “violent felony” under a federal law that would increase prison time if it did. Part of the table of contents is as follows:


This is pretty good work. It lays out a strong case for why sawed-off shotguns are dangerous, and does so in reasonably direct language.

But the brief should be better. The table of contents of a brief about why sawed-off shotguns are dangerous should be something you could read to Al Capone on the way to a hit without being smacked in the head for sounding like a professor. Why, for example, “short-barreled shotgun” rather than “sawed-off shotgun”? The brief itself makes clear, later, that the words are synonyms. Why the weak “individuals who take possession” in 1(b) and the bizarre language of 2(a)?

Here’s one possible rewrite:


A lot of lawyers become uncomfortable when they read something that has been rewritten in simple language. They don’t think it sounds lawyerly. They don’t think their client will want to pay their hourly rate to create sentences that a third-grader could understand. It doesn’t make them feel smart. But it works. Everyone who reads the second table of contents will understand immediately what the argument is and will see its logic.

There’s another thing about the second version. It is simple enough that it unmasks a good deal of redundancy in the previous version. 1(a) and 1(b) are pretty much the same thing. 2 and 2(a) are the same. 1 and 2 are quite similar. Perhaps the points made in the corresponding sections of the brief itself differ from one another enough that the writers could write better TOC sentences about them. If so, they should do so. If not, they should simplify the structure of the brief. Much redundancy and confusion can be concealed behind complex words, even the relatively straightforward first version above.

Gunston Specialty Holding Corp. LLC

Let’s say that you represent Gunston Specialty Holdings Corp. LLC (often abbreviated in company emails and internal documents as GSHCLLC). How should you refer to them in a brief?

Long-time readers of this blog are now shouting in unison “Gunston!” Shorter is better for a host of reasons, including that “Gunston” sounds a bit like a person—or at least something that might have some human attributes—while “Gunston Specialty Holdings Corp. LLC” does not, and GSHCLLC sounds like something you have to type in to get a website to accept that you aren’t a robot.

There’s another excellent reason for short names, from well-validated psychological research. When you write your brief about Gunston, you are introducing the judge to an unfamiliar name and then asking her to learn things about it and make decisions about it. This is a difficult mental task. Your judge stores information like “the name of the entity we’re talking about” in short-term memory. Short-term memory can’t hold much. When you stress it with a long string of words, or something that makes no lexical sense like an acronym, it decreases the judge’s ability to pay attention to the rest of your message and makes it harder to comprehend what you are saying.

When something is hard to comprehend and takes too much work to process, people tend to reject it. If your argument is confusing because of aesthetic details like your insistence on using awkward titles for the entities involved, you have made it less persuasive.

The effect of things like this is not 100%, of course; they function at the margin. A bad argument with nice short names is still unlikely to persuade; an excellent one about SXRCJSDS will probably still work. But it’s your job to improve the odds of persuasion, particularly in the close cases that are the most common kind to be presented for adjudication.

The affect heuristic

There is a well-documented psychological bias called the affect heuristic. When we observe one virtue in someone, we tend to ascribe other virtues to them as well. One notorious example is that if someone is attractive, we tend to think that they are also more competent, wise, clever, and so on. Repeated studies have confirmed the existence of this bias, and also that people tend to agree that other people are biased in this way, but that they themselves are not (but the studies show that they are, despite their protestations, and even after having been made aware of the bias).

The affect heuristic is one reason why presentation matters. Logically, of course, a brief can be attractive, well-formatted, and free of typos, but also confusing, stupid, and wrong. But if your brief has the first three attributes, that will make it at least somewhat more likely that the judge won’t think it has the last three.

We all learned in third grade that a clear plastic binder won’t salvage a lousy book report, and neither will careful formatting save a brief that is bad on the merits. But once you’ve gotten the content right, pay attention to the presentation. It matters.

Lawyer’s jokes

When I was a law clerk I drew up the initial draft of an opinion, including a short comic poem at the start reciting the facts. The judge—a very wise man who had been solving very serious sociolegal disputes before I was born—told me that it was funny but that an opinion wasn’t the place for it. The parties, he said, took their dispute seriously and may be insulted by levity. So he took it out.

You may be tempted to say something funny in a brief: a terrific play on words, a joke, a sarcastic comment. Don’t. The best that you can hope for is: (1) the judge and clerk don’t think that your levity is insulting to the gravity of the dispute; (2) they agree with you that it’s funny; (3) they appreciate your taking up their time with the joke; and (4) they respect and are not threatened by your wit. If you don’t get all four, you lose credibility. Care to calculate your chances?

Here, swallow this BRIQ

A BRIQ is a Big, Really Impenetrable Quote, and you shouldn’t try to make judges swallow them, because they won’t. BRIQs are lazy, because they say to the judge “here’s a bunch of stuff for you to read and figure out.” BRIQs are visually daunting, especially in block-quote format. Imagine being a judge who was reading Joe Jamail’s brief in Minton v. Gunn and turning to page 15 to see this:


The entire argument on the page is: “Another judge said the same thing we’re arguing: BRIQ … BRIQ. And then he said BRIQ.” That’s just lazy.

If you have quotes that are so on point that they win the case for you, the worst thing that you can do (other than not mention them at all) is serve them up without comment in BRIQ format. There’s a good chance the judge will skip over anything as unappetizing as a BRIQ, and a better chance that he won’t fully understand its significance if he does read it. If the quotes are that good, you should be explaining them, not just lining them up like masonry samples. And, by the way, you should be doing it on page one, not page fifteen.

« Previous Next »