The Tips in “How to Write a Kick-Ass Motion” Will Help Kick-Start Your Next Brief Project
by David Finley, Esq.
Finding the time and motivation to a draft a winning brief (or even just a pretty good one) can be a daunting task when your desk is piled high with files, all needing equal attention. Sometimes, just getting back to the basics in your writing can help overcome dreaded writer’s block when it comes to kick-starting a motion project.
Author C. Walker Harper has prepared an excellent checklist in his article How to Write a Kick-Ass Motion: 13 Tips for Leveraging Your Motion Effectively on filevine.com. The article reminds us that drafting a killer motion does not have to be an intimidating process, especially if we hold to the age-old KISS adage – keep it simple stupid. (Tip #2.)
“There’s no need to channel your ‘inner-Jefferson’ here. You’re trying to write a motion, not declare national independence.”
From How to Write a Kick-Ass Motion (filevine.com)
Even the inclusion of some fairly obvious tips are reminders to stick to the basics when building a brief. So, for example, his suggestion to make an outline (#1) while obvious to most good writers, is something we may overlook in the heat of a drafting project, whether due to the time crunch or overconfidence in our ability to stick to the script.
Other tips remind us to avoid legalese (#8), tone down hyperbole (#9), and explain cryptic acronyms (#12) — all great advice that even the best legal writers tend to forget from time to time.
But I think the most important guidance — in a list that is chock full of many great pearls of wisdom — is to focus on facts (#3). Walker reminds us:
“[N]ot every fact is relevant, so don’t clutter up your motion with the entire case history. If it’s not relevant to your motion, leave it out.”
From How to Write a Kick-Ass Motion (filevine.com)
I couldn’t agree more. The rest of his recommendations on the proper use of facts are worth their weight in blogging gold.
In my advanced motion drafting class at UCI School of Law, I remind my 2Ls and 3Ls that the most important element of a motion brief is the factual application. Judges generally know they have the authority to grant or deny your motion (so you don’t have to beat that dead horse). But, they don’t know YOUR facts. So, my guidance is to show the court how your facts, or reasonable inferences drawn from those facts, fit with good cases you’ve found (or don’t fit with the bad ones). Drafting effective and thorough applications is an art form that is often overlooked — or glossed over — in legal briefs, and yet this is the key to convincing a judge to rule your way in nearly all cases.
Walker’s tips don’t end there. He reminds us to maintain credibility (#3), use short intros (#6), respect the opposition (#7), and manage sentence length (#10) too. And he also hits on another of my own absolute keys to improving the quality of brief writing: the use of descriptive headings (#11).
Another true art form for legal writers, effective drafting of headings is a topic that should (and most likely will) be a topic for a much more detailed future article on this site. Well drafted headings — those that tie in the applicable law, the relevant facts, and an assertive statement of what you are seeking from the court in one economically drafted statement — when done right, can help guide the judge and his research attorneys straight into the result you are seeking. Remember that your readers often form opinions very early when reviewing your briefs, so guide them to the result you want by building a helpful road map to your argument with effective headings!
Finally, Walker rounds out his kick-ass list with another essential step in the process of building a great brief: edit and proofread your motion (#13). He reminds us that:
“Judges will overlook some things, but typos, poor grammar, and run-on sentences stand out and make you look bad.”
From How to Write a Kick-Ass Motion (filevine.com)
Okay, yes, we all give lip service to proofing, but I would argue that most of us don’t take this important step seriously enough — often by a long shot. First of all, I recommend printing out the brief and doing a hard edit in pen. (It’s just too easy to miss things when proofing on a PC – are you listening millennials??) And then, after you’ve finished entering your hard edits in the digital document, proof it again! And then … do it again just for good measure. At that point, you’re probably pretty close to catching the worst typos and other issues in your brief. (But I’d bet, you’re likely not 100% there yet!) I know time is money, but allowing silly (or not so silly) errors to slip through will hurt your credibility (see Walker’s tip #3!), which will come back to haunt you in the long run. So, leave yourself enough time to edit and proof the right way.
But don’t just listen to me: read all the details about how to write a killer brief in Walker’s piece. And then print it out and tape it next to your computer. You’ll thank me later.
