Brief Writing for the Frustrated Poet
By Preston Draper
An old axiom, slightly modified for the brief writer, instructs that if the facts are against you, argue the law; if the law is against you, argue the facts; and if both the facts and the law are against you, wax poetic.
The following suggestions may be useful when writing a brief in a losing case. These suggestions come without any warranty that they will improve your chances of winning a losing case, but they may help to spice up an otherwise pathetically prosaic pleading.
Use Words People Have to Look Up
Nothing is more poetic and endearing than using words in your briefs that only the most belletristic of lawyers will recognize. Obscure French words are my personal favorites because they make such a splash with the “Freedom Fries” crowd.
Take
Advantage of Alliteration
Alliteration is another useful tool when you have nothing of any legal value to say. It also adds some pizzazz and pop to otherwise pacific arguments. If you are especially adventurous, you can combine alliteration with some French words and really bowl over your judge and opposing counsel. As an example, a pleading I received not too long ago accused me of “present[ing] a pastiche of procedural arguments.” Pretty impressive, huh?
Cite
Unconventional Legal
Authorities
Hey, if the law and facts are against you anyway, why not? I once received a brief in which opposing counsel had quoted some lines from Gilbert and Sullivan’s “The Mikado” as
support for his
argument. Other source suggestions: High Times magazine, some 13-year-old’s blog or Britney Spears.
Use Creative
Similes and Metaphors
With a little
imagination, your arguments can go from bland to grand. Again I borrow from
pleadings I’ve received to illustrate my point. For instance, don’t tell a court that its rules are too restrictive, instead, call the rules “inhospitable
sentries.” Instead of saying something is unfair, you could say something like “the smile of Lady Justice is fleeting in the halls of this court.” You know, something with a little juice to it.
So next time you find yourself needing to write a brief in a losing case, let that inner poet express him or herself. You never know, maybe you’ll win.
"Hey, if the law and facts are against you anyway, why not? "
Mr. Draper is an assistant attorney
general in Oklahoma City.
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