(c) Use the following tips throughout

craft CRAFT

Tip 35. Understate rather than overstate:

'It is relatively easy to overstate any point with generalities and adjectives. However, to understate an argument, specific and close reasoning are required. An argument that can be understated will tend to be sound … An understated argument has a unique if intangible power of persuasion.'423

Tip 36. Write in a civil tone; omit all scorn, insult, sarcasm, and offensive language.

Insult and sarcasm 'is not the stuff of which real persuasion is made. The argument is not convincing because the reader soon recognizes its artificiality'. In addition, 'These briefs lack candor; they are a form of bad manners'.424

Tip 37. Use short words, short sentences, and short paragraphs.425

The less involved the language, 'the easier it is to read and to follow a thought … It requires more thought and skill to condense an idea than to write a lengthy discourse'.426

Neil James gives 2 useful tests when choosing your words: first, look for the word that conveys your meaning most exactly (this will narrow the field); second, pick the shortest of the alternatives. The word that passes both tests will give you power and precision.427

Tip 38. Keep quotations short.428

Long quotations make a document hard to read and suggest laziness.429 And long quotations 'drastically diminish the chances of having the material actually read'.430

Tip 39. Use people's names rather than procedural labels like 'appellant' and 'appellee'.431

For example, 'Dorothy Brown' becomes 'more nearly fixed in our minds as a person about whom we can have some interest and understanding, surely more than we gain from the arid concept of "the plaintiff".'432

Tip 40. Include a Table of Contents that repeats your headings and subheadings.433

And thus disclose the messages of the brief at a glance.434

Tip 41. Avoid unnecessary repetition.435

Some conscious repetition of major points may actually help to persuade. For example:

'[W]hen an opinion contains a particularly cogent phrase that may come close to the heart of your own case, emphasize it by repetition. Take that key phrase from the opinion and state or paraphrase it as part of the preceding point heading or subheadings; perhaps repeat it in an introductory sentence following the heading; if appropriate, repeat it, in quotes, in the sentence summarizing the holding of the case; and then underscore it in a quotation from the opinion.'436

Table 74: General writing tips

423 F Trowbridge Vom Baur, 'The Art of Brief Writing' (1976) 22 The Practical Lawyer 81, 89. See also John A Wilson, 'Common Sense in Advocacy: Some General Observations on Trial of a Suit' in George Rossman (ed), Advocacy and the King's English (1960) 59, 64 ('Understatement is, in itself, a powerful factor in the psychology of persuasion'); James W McElhaney, 'Legal Writing That Works' (2007) 93(7) ABA Journal 30; Bryan A Garner, The Elements of Legal Style (2nd ed, 2002) 197–8; Steven D Stark, Writing to Win: The Legal Writer (1999) 123–6.

424 F Trowbridge Vom Baur, 'The Art of Brief Writing' (1976) 22 The Practical Lawyer 81, 89. See also Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1064; Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 178. Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 337–9; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 259.

425 But not at the expense of clarity. See Edwin Abbott, How to Write Clearly (1883) 36–7.

426 Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1061. See also F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 89 ('[G]race and clarity can usually be best provided with the ammunition of short sentences and five-cent words'); Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 132–134; Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 136–7; Irving Younger, 'Skimming the Fat off your Writing' (1986) 72(3) ABA Journal92; Richard C Wydick, Plain English for Lawyers (4th ed, 1998) Ch 5.

427 Neil James, Writing at Work (2007) 190. See also Bryan A Garner, The Elements of Legal Style (2nd ed, 2002) 30.

428 Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1061; Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 350–52; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 242.

429 Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 177.

430 Bryan A Garner, The Elements of Legal Style (2nd ed, 2002) 85.

431 Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1062; E Barrett Prettyman, 'Some Observations Concerning Appellate Advocacy' (1953) 39(3) Virginia Law Review 285, 292; Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 182; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 133–134. But compare Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 23–4.

432 Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1062.

433 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 86. See also Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1063; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 68; Deborah E Bouchoux, Aspen Handbook for Legal Writers (2005) 158.

434 F Trowbridge Vom Baur, 'The Art of Brief Writing' (1976) 22 The Practical Lawyer 81, 86.

435 See F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 87; Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 23. See also Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1063; Joseph P Napoli, 'Forceful Brief Writing and Oral Argument' (1977) 12 Trial Lawyers' Quarterly 82, 85; Deborah E Bouchoux, Aspen Handbook for Legal Writers (2005) 98.

436 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 91. See also Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 163 ('some facts are so good that you'd almost be crazy not to repeat them'). For psychological theories on the effect of repetition, see Paul T Wangerin, 'A Multidisciplinary Analysis of the Structure of Persuasive Arguments' (1993) 16 Harvard Journal of Law and Public Policy 195, 201, fn 35. See also Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 148–9.

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