In the return of his Legal Writing Reminders column, Josh Taylor explores how to improve your brief’s facts section by becoming a better storyteller.
I admit it: I’m on a kick recently. I’m obsessed with facts. Maybe it’s due to Netflix with its never-ending string of true crime documentaries, where the facts are obscured and constantly in question, and you’re left guessing and gripped until the very end. Maybe it’s today’s political climate, where the same is usually true. Or maybe it’s all the cases and briefs I’ve been reading that rely too heavily on the law to make an argument and gloss over what might be a terrific story.
Too often, we lawyers focus on our namesake, the law. But it is the facts of our case, and how we frame those facts, that make or break our arguments and our veracity. When we lose our factual moorings in our brief and motion writing, we lose our readers’ interest. When we lose interest, we lose our arguments. In this installment of Legal Writing Reminders, we’ll explore what choices to make when writing facts sections, storytellers we might model our fact writing after, pitfalls to avoid, and how we can practice becoming better storytellers.
Write Simply, Unless It’s Boring
As writers, we consistently face one choice above all others: how to say something — with more words, or fewer? As humans — unless you enjoy trying to sound smarter than everyone else in a room, in which case, you need more work than I can offer in this article — we speak relatively simply. After all, spoken word is about getting a point across within an expiring time period. As lawyer-writers, we have somehow decided that, because we are memorializing something on a tangible page, our readers have infinite amounts of time in which to read and reread and digest our points. We aggrandize our speech, often to the point where the point is lost.
Writing our facts and telling our story should meet somewhere in the middle of those two extremes. Our facts should be simply laid out, but not at the expense of being memorable and, dare I say, fun. After all, the facts that begin an important brief must be memorable to resonate through the legal arguments made later.
With all that said, there is a way to make the most important facts stand out to a reader: contrast. Write the most important facts as simply as possible, and place the punchline facts at the end or beginning of a paragraph with longer sentences. Varying sentence lengths within a paragraph is proven to keep a reader’s attention. It breaks up monotony and creates a pleasant reading experience. In “100 Ways to Improve Your Writing,” Gary Provost says it best (and in a way near and dear to my heart as a lover of music):
This sentence has five words. Here are five more words. Five-word sentences are fine. But several together become monotonous. Listen to what is happening. The writing is getting boring. The ear demands some variety. Now listen. I vary the sentence length, and I create music. Music. The writing sings. It has a pleasant rhythm, a lilt, a harmony.
Additionally, putting your most important facts in shorter sentences ensures that “scanners” catch everything they need to understand your arguments later. Indeed, when factual information is “scannable” readers perform better in comprehension tests.
Journalists, Chris Nolan and Stephen King
The old elementary school mantra is right: who, what, when, where and why. Most journalists do this better than any other types of writers out there. Thus, journalists are a terrific model for our fact section writing. However, journalists do something that we do not want to emulate as advocates: They remove most emotional tenor from their stories. As lawyers, we want to allow our facts sections to give the reader an emotional experience that results in our argument sections ringing true. That’s where professional storytellers come in.
Think about your favorite movies, TV shows and plays. They all tell a complete story and highlight the things the audience must remember. It’s an art. Our fact writing should be the same. Screenwriters are perhaps the best people on whom to model our own writing. The reason is the feeling that they create. The “why” of our 5 Ws is infused with electricity, momentum and emotion. After all, emotion is inextricably tied to memory. Screenwriters also do something to their characters: They make them likeable or unlikeable depending on their role in the story. We as lawyers must do the same thing.
Finally, novelists provide us with another important role model for writing facts sections of briefs. Their goal is to keep our attention as readers for many, many pages. If they didn’t, they’d be out of a job. Their writing is meant for pleasure, meaning no one has to read what they write — we actually want to! We can learn a lot from that. If a clerk enjoys reading your framing of the case, you’re already on track to gain points when you argue the law. Do what the novelist does: Create themes that carry through your entire brief in the facts section; highlight important character traits; and emphasize the most interesting parts of your fact pattern with colorful but simple language.
As a side note, some judges are also writing role models. Who can forget Mattel, Inc. v. MCA Records, Inc. out of the Ninth Circuit? And how about Chief Justice John Roberts’ display of his love of spy novels in dissenting from a denial of cert:
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.
Too good. And very memorable.
If You Want to Write a Law Review Article, Write a Law Review Article
If I haven’t been clear so far, your brief is not the place to display your command over the most complex parts of English grammar. Just stop it. Keep syntax and word choice simple but compelling. If you want to write academically and impress people, write a law review article.
Put a Sock in Your Footnotes
I’m as guilty of this faux pas as many other lawyers. We decide that we need to add tons of dry information to a sentence, but want to “hide” it somewhere, so we add a footnote. The myth of footnotes is that they are simply not hidden. To pretend the reader is moving right past the footnote, only to go back to it after they’ve completed the entire brief’s facts section, is ludicrous. Instead, the reader is stopping the flow you’ve created in the body of your writing to take out their magnifying glass and read your footnote. If it’s important enough for the page, tactfully build it into the body of the facts section.
Let’s Practice — But You’ll Need a Volunteer from the Audience
In your house, who’s the least lawyerly and most dramatic person? If it’s you, then you might be in trouble, but chances are you can find someone to read your latest facts section of a brief as if they were critiquing a story. Have them do it. Learn from their questions. Are they lost? Are they bored? Neither of those things should happen for any reader when first cracking open your brief. Further, ask them how you can make the story more compelling. Ask them what they think is important and what would make the story more memorable. Just because we are super-smart lawyers does not mean our communication skills should be esoteric.
Having story-loving family members or friends read your facts sections will indicate where you need the most work. Once they give feedback, you’ll have work to do, and you’ll quickly know what you struggle with most. Are you unable to explain difficult concepts? Do you struggle to properly lay out timelines? Do people get lost when it comes to “characters,” or are you portraying them in a way that clearly helps your case?
Try it. I look forward to hearing your stories.
