What to Write—Analysis in Legal Writing
The Bencher—May/June 2023
By Raymond T. “Tom” Elligett Jr., Esquire, and Amy S. Farrior, Esquire
Books and articles abound about “how to write”—how to make your legal writing more effective, persuasive, and maybe even engaging. But how to write should facilitate the more important goal of “what to write”—what to say to make your client’s case.
Clear and persuasive writing is important to getting one’s arguments across. But the lawyer’s primary objective is to ethically advance the client’s positions. That takes much more than a nice turn of the pen (or stroke of the keyboard).
An effective lawyer’s real talent depends on other skills. Key is the lawyer’s ability to analyze the law and determine how it can be applied to the facts of a matter. Typically, facts are developed through discovery that precedes the lawyer’s writing. The motion, memorandum, or brief then advances, analyzing how the law applies to those facts. Of course, thinking about what one will want to write later should frame that fact discovery.
How does a lawyer develop the skills to know what to write? The process should start early in the lawyer’s career. Law students should be learning substantive law in different areas. But they should also learn the reasons for the law and how to apply that law or distinguish it. Most law school classes should prepare young lawyers to develop those analytical skills that are the cornerstone of a thoughtful, skilled practitioner. In hindsight, we think most law schools do a better job of this than they are often given credit for doing.
In conducting the “what to write” analysis, the lawyer should locate the case law or other authorities that support the client’s position and, just as important, those that present problems. In a new matter “in the door” at the trial court level, this may entail a learning curve, depending on the lawyer’s prior experience or expertise.
For representations where the lawyer comes in while the case is underway, such as appeals, there should be research, memoranda, and pleadings from which the lawyer can start. Counsel should still conduct their own independent analysis of the authorities and arguments and then build on that.
After this initial evaluation (a lawyer should return to and continue the analytical process throughout writing the document), the next step in “what to write” is the lawyer getting this analysis down on paper (or the modern equivalent). Make your point(s) early. How to do this depends on the legal document.
If counsel is preparing a trial court motion or memorandum, the key point should appear on the first page (if the style is not too large). Some courts may require some prefatory references to rules. But they should not require arcane beginnings such as “Defendant ABC Corporation, by and through its undersigned counsel, pursuant to Fed. R. Civ. P. 56, moves for a summary judgment on the basis set forth below.” Then the real point (such as that the statute of limitations ran) may appear paragraphs or pages later, after a recitation of the procedural posture and the facts.
Instead, consider: “Defendant ABC Hospital moves for summary judgment because the Plaintiff sued after the two-year limitations period had run.” Or for the response: “Defendant is not entitled to summary judgment because the time for Plaintiff’s suit was tolled under Florida law because...” (or better, cite the key case or statute).
If the product is an appellate brief, delivering the key points at the earliest opportunity may depend on the rules or the judge. Appellate judges differ on which parts of a brief they read first. Some start with the issues in the table of contents. Others read the facts or the summary of the argument first.
The issue wording in the table of contents (and argument) should give the reader a succinct summary of what is coming. If the issue says: “The court erred in entering summary judgment” or “The court erred in entering summary judgment because there were disputed issues of material fact,” the author should be banned from appellate brief writing until that lawyer learns what to write. Such issue statements tell the reader next to nothing—only that there was a summary judgment.
Writing a meaningful issue must include enough detail—facts and law—that the reader gets the point. For example, instead of the above, write: “The court erred in entering summary judgment because the treating doctor had not revealed the diagnosis to the plaintiff, so that the statute of limitations was tolled by that concealment under the Nehme decision.” The issues are a short but critical part of a brief. Spend the time they deserve to craft them, and revise them as you develop the arguments.
Consider starting the statement of the case and facts with an overview. Do not waste the opportunity to grab the reader’s attention by using that space to explain the appellant will be referred to as the plaintiff, or the defendant XYZ Corporation as XYZ. Judges are smart enough to figure that out on their own. If you must, do that at the end of your opening. State in a (short) paragraph what your side is about and why the case should be reversed or affirmed.
What to write in the facts depends on the issues and the legal arguments that will follow. Include all the facts relevant to your issues—both the ones you will rely on and the adverse ones you must deal with. Particularly if you are the appellant, there must be some bad facts, or law, or both. Some advise to write your facts so the court could use them in its opinion.
Some judges say they usually are familiar with the law and so, want to hear about the facts and how the law applies to those facts. While this may be the case, judges are generalists, and lawyers should not assume the judge has the same level of knowledge in a particular area of substantive law that the advocates who specialize in the area do.
The summary of the argument can and should contain the key facts that support the legal argument. State the points succinctly, and word them so the reader’s reaction is “of course” that’s the right result. But make sure everything in the summary is somewhere else in the brief in case the reader skips the summary.
There is no immutable formula for approaching what to write in the argument section of a memorandum or brief. We think a generally effective method is developing the arguments by starting with your side’s law and positions. What authorities show your client deserves a reversal or affirmance? Then counterpunch—for each of the other side’s points use the analysis you developed to rebut the opponent’s law. Show how their cases don’t apply to your position, or to your facts, or that they misread their cases.
The appellant appealing a bench ruling has the trial court’s order, which typically will explain the court’s findings and reasoning. If the court decided the case on summary judgment, were there disputed material issues of fact? Whether or not there were disputed fact issues, was the court’s legal ruling correct? If the appellee raised other grounds for the ruling, appellant’s counsel should evaluate if they should be addressed in the initial brief. There may not be room in the reply brief and ignoring them may prompt the “Trouble With the Curve” reaction: the appellant knows what’s coming and has no answer.
In appealing a jury trial, the lawyer’s analysis should identify and narrow the viable points for appeal. What to write should not encompass every slight that may have upset the trial lawyer. Rather, what were the harmful errors that may move the appellate court’s needle?
The appellee has a “script” to work from: the initial brief. The answer brief needs to address each issue raised by the appellant. The appellee can start each point with the basis on which the appellee secured the ruling below. Then move on to respond to the arguments the appellant raises, to the extent not yet covered. The appellant then responds to the answer brief points in the reply brief and should note if the answer brief failed to address points or key authorities in the initial brief.
On more complex issues it may be possible to break them down into more manageable subparts. For example, what are the elements of the cause of action, and for which ones were the law or facts in dispute?
Just as there is not one way for “how to write” a persuasive legal brief or memorandum, there are different approaches on “what to write.” But legal writers should appreciate they were not retained by the client because they are novelists or poets. Even though the client may not have considered it consciously, the client needs the lawyer’s analytical skills on what to write.
Raymond T. “Tom” Elligett Jr., Esquire, and Amy S. Farrior, Esquire, are shareholders in Buell & Elligett, P.A. in Tampa, Florida. They are Florida board-certified appellate lawyers and past presidents respectively of the J. Clifford Cheatwood American Inn of Court and the C.H. Ferguson-M.E. White American Inn of Court. The authors thank Professor Stephanie Vaughan of the Stetson University College of Law for her input on a draft of this article.