Great tip from Justice Scalia

I told you I was going to read the book Making Your Case by Justice Scalia and Bryan Garner, the Editor in Chief of Black's Law Dictionary. It is really good. It's a quick read, but it's full of great advice.

The most informative section, in my opinion, is the one dealing with legal writing. It is somewhat geared towards appellate briefs, but the authors point out which tips should also apply to pleadings and motions in the trial court.

I have handled five appeals in the past five years, if you count the Supreme Court case as two. I am currently waiting for decisions on two separate cases. That means I have probably written seven or eight appellate briefs, considering that you write two if you are the appellant. There is a tip in the book which I have never used before in a brief, but I will use almost every time from here on out. I also used it today when drafting a motion in a breach of contract case.

Chapter 14 is titled "Always start with a statement of the main issue before fully stating the facts." That statement itself is not groundbreaking. Most appellate court rules require that the "Questions Presented" appear in the first one or two sections of the brief. Trial courts benefits as well by learning the issue before reading through all of the facts. But what is interesting is how the authors recommend that you phrase the issues.

The statement of the issue should contain enough of the facts to make it informative, even slightly persuasive. I must admit that all of my issue statements in my appellate briefs have probably started with something like "Whether the trial court erred...etc." That's how I thought you were supposed to do it.

But compare these two issue statements provided by the authors: (1) Whether the appellant was in total breach of the contract; and (2) The appellant delivered a load of stone two days late under a contract not providing that time was of the essence. Was the appellee entitled to reject the delivery and terminate the contract? The second one is obviously more informative. It could probably be a little more persuasive, but you get the idea. I am definately going to start paying more attention to issue statements in my legal writing.

Stay tuned for more tips.