What to do first in editing a legal brief

When most lawyers edit a brief, they pick it up in one hand with a pencil in the other, flip to the text, and start reading. If they see something they disagree with, from a paragraph that is out of place to a superfluous comma, they mark it for correction. They get to the end of the brief and hand it to their secretary or back to the original drafter for the edits to be made. This is a haphazard and ineffective way to edit, for a number of reasons. Most importantly, it causes the editor to focus on fine details too early in the process, so that much more important systemic problems are never detected. Also, a single-pass effort to edit everything divides the editor’s attention, so that no level of editing gets the care that it deserves.

The first thing that you should do when editing a brief is to read it through. Don’t have a pencil in your hand, or you will start to edit. Don’t. Read it from start to finish. Try to pretend that you don’t know anything about the case already. Here’s what you should be asking yourself:

  • What does the writer want the court to do? Does he or she ask for it clearly on the first page?
  • What is the core question presented?
  • Does the brief say what the relevant precedent says about the core question?
  • Why should the court care about this motion and want to rule on it?
  • What, in two or three simple sentences, is the argument?

If you can’t answer each of those questions, there is no point in proceeding to the next level of editing. Find out the answers, and edit the brief so that the judge who will have to read it will be able to do so as well. If you are editing someone else’s brief, and have the time to teach them something, have them make the edits. Even if this is all that you have time for, it will be time well spent—because if you don’t get the big picture right, the rest doesn’t matter at all.

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