In most first-year legal writing courses, the spring semester signals an important shift from objective to persuasive writing. The classic curriculum introduces objective writing, in the form of an office memorandum, in the fall, then switches to persuasive writing, typically an appellate brief or sometimes a trial brief in the spring. Many students feel as though they have not mastered the first type of writing before they are asked to transition into the next time of writing.
Here are some tips for law students on how to master their writing skills for an open-research brief:
(1) Keep in mind that a lot of your paper actually remains the same. The argument section of a brief and the discussion section of a memo are organized in a similar fashion, with rule explanation and then a rule application/analysis. However, the analysis is expressed differently – objectively or persuasively.
(2) Compare the audience and purpose of a memo with those of a brief. A memo is written to a supervising attorney to assess all sides of an issue and predict an outcome or recommend a course of action. A brief is written to a judge to persuade the judge to rule in your client’s favor.
(3) Draft persuasive headings. Every component of your brief is an opportunity to persuade, including headings. Neutral, topical headings were sufficient in a memo, but a brief requires complete, persuasively phrased sentences that convey the desired outcome and refer to determinative facts.
(4) Emphasize the “best” cases. Choose precedent with a view toward persuasiveness, especially if your assignment involves an open-research brief. Law students find more cases than they need. Take persuasive value into account when deciding which cases to use and how to use them. Do not solely focus on persuasive authority. Use recent, mandatory authority with factual and procedural similarities to your assignment. Your rule explanation should emphasize your best cases. Use string cites to bolster your point.
(5) Write about the law from your client’s perspective. For an open-research brief, do not simply restate the law, as an objective rule. Instead, frame your rules favorably for your client.
(6) Make the strongest arguments. Do not make every conceivable argument. It is more persuasive to focus on the strongest arguments and omit weaker arguments. This requires careful judgment. Assess all the arguments you might make and decide which are best supported by the law and facts. Keep in mind the burden of proof: the plaintiff has to prove all elements of her claim; failure to prove just one results in a loss for plaintiff and a victory for defendant. If you represent the defendant, this means you may argue selectively, prevailing on a single element plaintiff failed to prove.
(7) Consider addressing counterarguments. To assess an issue objectively, consider counterarguments and explain them. When writing a brief, however, you may choose to address counterarguments that you’re sure your opponent will raise, in a way that disposes of them as weak and non-persuasive. Or, if you’ll have the opportunity to respond, you may make a strategic decision to wait and see what your opponent does first. Always be sure to present your arguments first, then dispose of counterarguments.
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