Power of the pen: taking your case to a higher level? For effective brief writing, consider these suggestions from a veteran justice of a state supreme court. They may also help you write your next trial memorandum.

The ability to persuade by clear written communication is a key attribute of an effective attorney. But the art of effective persuasion eludes many lawyers, despite much published instruction on dos and don'ts.

My perspective is that of an appellate judge, a position I have held for more than 20 years. However, many of my recommendations apply to effective written advocacy in the trial courts, where the persuasive memorandum bears a strong resemblance to its sibling, the appellate brief. Here are a dozen suggestions to enhance skills that convince.

Avoid misstatement. Nothing will undermine an advocate's credibility with the court more than misstating the facts, the record, or cited authority.

Most judges begin thinking about a problem by reading and checking factual references, the parts of the record relied on, and the cases and other sources cited as relevant authority. If any of these are wrong or don't exist, the persuasive power of your submission is reduced to near zero.

Each fact must be carefully documented, each piece of the record firmly in place, and each citation deadly accurate. This is not to say that you may not argue inferences from established facts; drawing inferences is wholly different. But the mainstay of persuasive integrity is scrupulous avoidance of misstatement.

Know the court. To persuade someone, you must have a grasp of his or her predilections. It is relatively easy to learn about the propensities of a trial judge from past appearances before the judge and reports gathered from colleagues. Appellate courts are a different matter.

Generally speaking, if you are appearing before an intermediate appellate court, you should focus primarily on whether error occurred at trial. Intermediate courts want cases disposed of quickly. Most of these courts are backlogged, and they know their purpose is almost entirely the correction of error.

Supreme courts, on the other hand, usually select cases for their social policy and law advancement potential. In these forums, arguments about fairness, public policy, and improvement of the judicial system are best received. If you have a case involving these considerations in an intermediate appellate court, you should invoke procedure to move it to the state supreme court.

Trial judges, as lone rangers, are open to all the blandishments that affect supreme court judges. Generally, they welcome policy arguments because results based on policy and fairness tend to enhance their prestige in the judicial and legal community.

Know the standard of review. This requirement is obvious but often ignored. The standard of review commands how the particular issue will be decided. Every brief or memorandum should contain a short statement of the governing standard. I stress "short" because the court will undoubtedly be familiar with the standard but will want to know that you are too.

Adhering to the correct standard of review can be painful at times, as when no objection has been made at trial. And to succeed on appeal, the appellant has to demonstrate plain error or manifest injustice. (1) But an advocate's candor in all aspects of the case is a prerequisite for credibility. You have to play the hand you were dealt.

Submit a statement of issues and a summary of argument. Rules governing appellate briefs usually require a statement of issues presented and a summary of argument. I suggest that you include them in any memorandum you present to a trial court. Judges have limited reading time. A carefully drawn statement of issues, accompanied by a brief summary of argument, will give the judge a quick snapshot of what the court must decide and what you propose as the basis for decision. (Concise statements persuade.)

Present marginal arguments. Should you include marginal or weak arguments? Some say no, because they only detract from the strong ones. But based on my experience, you should present marginal arguments because you never know what will appeal to the court.

I have seen courts rely on a marginal argument because it is the simplest way to decide a case and because unwanted complexities associated with the strong arguments can be avoided? This is especially true for intermediate appellate courts, which will decide a case on a technical point (usually procedural) simply to keep up with the dockets.

Marginal arguments should be put in a separate section or sections of the brief or memorandum, not tacked on to strong arguments. Frivolous arguments should always be abandoned.

Mine the record for error. Here is a tip for appellants: Errors, of course, can occur anytime during the trial, but they frequently show up in evidentiary (not discretionary) rulings, closing arguments, composition of special verdicts, and the judge's instructions to the jury. Examine these parts of the trial transcript carefully.

Pile on the authority. I am often amazed at how penurious counsel are in citing authority to persuade the court. All lawyers know that decisions of the particular state or federal appellate courts in the jurisdiction are to be cited. Why stop there?

Judges are interested in what is going on elsewhere. How many states or federal courts have spoken on the issue? Has a consensus developed? If not, what categories of decisions have emerged and what reasons are given to support them?

If the interpretation of legislation is in issue, give the court legislative history (or tell the court that you've looked and there is none). No issue on which the American Law Institute has spoken in one of its restatements should be addressed without pointing out what the relevant restatement provides. (Pay careful attention to the Restatement (Third) of Torts, for example.)

Bring well-recognized treatises into play, as well as good local ones. Mention annotations when they're helpful. Comb law reviews and other scholarly periodicals; scholarship in these publications is the product of the legal laboratory and frequently furnishes thoughtful analysis and criticism that can be used as a basis for argument. (3)

This list is not exhaustive, but you get the point.

Use footnotes properly. The longstanding debate over the use and value of footnotes is alive and well. (4) Some judges and lawyers do not use them at all. This school of thought maintains that footnotes derail the reader's train of thought, are sometimes used deceptively to deal with important issues in less than proper ways, and cause overall confusion. Other judges and lawyers feel that footnotes serve an important purpose. Between the competing views, I find a limited place for footnotes as follows:

* to quote text passages of decisions and statutes that round out the picture--although the most important text should always appear in the main body of the brief or memorandum

* to identify parties not central to the case

* to set out trial testimony

* to describe minor procedural points and collateral proceedings

* to posit other situations that may arise but are outside the holding of the case (in other words, to set forth possible scenarios for the court to talk about in dicta).

Footnotes should never be used to cover up or misrepresent material facts, to misstate or diminish relevant law, or to short-circuit page limitations.

Pay attention to style. Although not as important as substance, writing style is more than window dressing. A consistent, readable style will enhance the impact of your arguments.

Write short sentences. Use the active voice. Make your text gender-neutral. Omit the "throat-clearing" phrases that lawyers love so much: "It is well settled that," "As will be hereafter explained," "There is no useful purpose served by discussing at length," and so on. Avoid Latin phrases (unless the phrase has an established doctrinal meaning, like res ipsa loquitur). Stay away from supra and infra; judges want coherent memoranda, not page flippers.

Personalize and humanize the parties. Don't refer to them as "appellant" or "appellee." Call them by their names or titles. Remember the sage advice of Justice Felix Frankfurter: "We [as lawyers and judges] must translate the idiom of the industry into vernacular English." (5)

Finally, avoid personal attacks. Judge Rudolph Kass, one of my former appellate colleagues wisely cautions against them:

   There are, to be sure, occasions when it is apt to observe that an
   opponent's case is frivolous, presented incoherently, and so forth.
   Generally, appellate lawyers should restrain the impulse to dilate on the
   cupidity or stupidity of opposing counsel. If the urge is irresistible, a
   tone of sorrow, rather than anger, is the appropriate note to strike. It is
   best not to belabor the ignorance and brutality of the judge below. We
   belong to the same union, and more to the point, if the judge has been
   obtuse it should be self-evident from your argument. It suffices to say
   that the judge was wrong, that the good judge had a bad day.

Catch the court's eye. Judges and lawyers know the persuasive power of demonstrative evidence at trial. Yet little of that power makes it onto the printed page of the memorandum or brief.

I suggest that you use various "eyecatchers" to strengthen your submissions. For example:

* Include legible reprints of critical pieces of demonstrative evidence.

* Use charts, time lines, or diagrams to illustrate the flow of events and arguments.

* Set out your arguments like chapters in a book, using Roman numerals (I, II, III).

* Subdivide your arguments into points set out in separate paragraphs by subsections or bullets.

* Put key language of a statute or case in bold text or italics.

* Block and indent all quotations of more than 50 words.

* Use appendices wisely. Do not overload them with irrelevant documents.

The most persuasive "eyecatcher" of all, however, may be a full explanation of the policy or reasons supporting your position. Judges love policy and reasoned application. Lawyers seldom provide them, choosing instead to cite cases woodenly. Explain why justice and fairness call for you to win. Discuss why society will benefit if the result you want prevails. Mention the cataclysms that may befall the judicial system if your rule is not adopted.

Rally your friends. An amicus is, by definition, a friend of the court with an ax to grind. Never espouse a controversial position without canvassing available amici to give you help. Many groups, if solicited, will file a brief to support your argument.

Appellate judges love amicus briefs because they express the views of parties with particularized interests and discuss policy from unique perspectives. Good briefs will enhance arguments, give insights, and spell out the impact of the court's decision on future cases. From time to time, I have used the reasoning in an amicus brief to decide a case (without saying so) because the reasoning is superior to anything offered by the parties.

Specify the relief you seek. Do not ignore this part of your memorandum or brief. If the relief you seek is anything other than a standard form (like judgment affirmed or reversed, summary judgment granted), you should spell it out in detail. The prayer for relief becomes the road map for the trial court to follow. If it is muddled or ambiguous, the judge will have difficulty complying with it, and that may lead to a separate proceeding to obtain clarification. A tactical advocate wants to avoid war on two fronts.

To sum up, I commend the wise words of Justice Joseph Story, which encapsulate all of this:

   You wish the court to hear, and listen too? Then speak with point, be
   brief, be close, be true.

   Cite well your cases; let them be in point; Not learned rubbish, dark, and
   out of joint; And be your reasoning clear, and closely made, Free from
   false taste, and verbiage, and parade. Stuff not your speech with every
   sort of law, Give us the grain, and throw away the straw. Whoe'er in law
   desires to win his cause, Must speak with point, not measure our "wise
   saws,"

   Must make his learning apt, his reasoning clear,

   Pregnant in matter, but in style severe; But never drawl, nor spin the
   thread so fine, That all becomes an evanescent line. (6)

Notes

(1.) As difficult as such a showing may be, it can be made. For examples of when and how to do so, see Robert J. Martineau, Considering New Issues on Appeal.' The General Rule and the Gorilla Rule, 40 VAND. L. REV. 1023 (1987).

(2.) A good example of how a seemingly marginal argument can win on appeal is seen in Vassallo v. Baxter Healthcare Corp. (696 N.E.2d 909 (Mass. 1998).) The Massachusetts Supreme Judicial Court affirmed a sizable judgment for the plaintiff in a silicone-gel breast implant case because defense counsel had not exactly followed a discrete point of local procedure in objecting to the testimony of the plaintiffs medical expert.

(3.) For an example of how law review discussion can enhance the court's learning and find its way into an opinion, see Vassallo, 696 N.E.2d 909, 922-23 & n.18.

(4.) See, e.g., Bryan A. Garner, Clearing the Cob-webs from Judicial Opinions, 38 COURT REV. 4 (2001). Garner, a respected authority on legal writing, proposed that footnotes be virtually abandoned. Other useful commentary on the subject appears in the same issue.

(5.) United States v. John J. Felin & Co., 334 U.S. 624, 625-26 (1948).

(6.) JOSEPH STORY, LIFE AND LETTERS II, 89-90.

RELATED ARTICLE: Concise statements persuade.

Don't miss the opportunity to sway the court with a well-crafted statement of issues and summary of argument. The issues should be put in question form, eschew generality, and inform the court of the precise nature of the controversy. The argument summary should be succinct. The ones below are good examples.

--John M. Greaney

Statement of Issue: Did the judge commit a prejudicial abuse of discretion when, without consulting the parties concerning the procedure, he permitted jurors to submit questions to the witnesses who testified?

Summary of Argument: Without any advance notice or consultation with the parties, at the outset of trial the judge announced his intention to afford jurors the opportunity to question witnesses. Over the defendant's repeated objections, the judge solicited written questions from the jury at the close of each witness's testimony; questions were submitted in response. That process, with its attendant delay, confusion of the participants' roles, and potential for premature and prejudicial fact-finding by the jury, deprived the defendant of a fair trial.

Although this court has not forbidden the practice of permitting juror questions, it has expressed grave reservations and counseled that it be employed "infrequently and with great caution." (Commonwealth v. Urena, 632 N.E.2d 1200, 1206 (Mass. 1994). See also United States v. Bush, 47 E3d 511,515 (2d Cir. 1995); United States v. Johnson, 892 E2d 707, 713 (8th Cir. 1989) (Lay, C.J., concurring).)

In the face of that cautionary guidance, to have settled on such a course without making any findings as to need, and without first affording counsel an opportunity to be heard, was a clear abuse of discretion. (United States v. Thompson, 76 E3d 442,448-50 (2d Cir. 1996); United States v. Ajmal, 67 F.3d 12, 14 (2d Cir. 1995).)

Counsel voiced concern at several junctures that the process encouraged jurors to become partisans and inquisitors. A number of the questions proposed by the jury demonstrated the legitimacy of that concern, particularly when questions were couched in terms suggesting that certain jurors had from the outset adopted the commonwealth's theory that this defendant was the assailant. (Morrison v. State, 845 S.W.2d 882,887 (Tex. Crim. App. 1992) (juror questioning causes jurors to "assume an active adversarial or inquisitorial stance [and] ... inevitably leads the inquirer to draw conclusions or settle on a given legal theory before the parties have completed their presentations").)

Early on, the judge clearly repented of his unilateral decision to encourage juror questions: He actively solicited objections, later admonished the jurors to "show some restraint," disallowed a variety of questions as a matter of convenience rather than based on the rules of evidence, and ultimately urged counsel to simply review and utilize proposed questions as a guide for further inquiry. All those circumstances demonstrate an ill-chosen and inconsistently administered departure from procedures appropriate to guarantee the defendant a neutral fact finder; he is entitled to a new trial.

John M. Greaney is an associate justice of the Massachusetts Supreme Judicial Court.