The dating game.

Imagine that you're a judge reading a brief in chambers. You're trying to get a handle on the facts when you come upon this passage:

   On June 26, 2004, Dr. Jones told the plaintiff
   that the pain running down the back of
   his leg was from a pulled hamstring. On August
   24, 2004, the plaintiff reported ongoing
   leg pain, and Dr. Jones became concerned
   that there was a more serious injury.
   The plaintiff returned to Dr. Jones on August
   31, 2004, September 20, 2004, and November
   23, 2004, each time complaining
   that his leg pain persisted. Dr. Jones referred
   the plaintiff to an orthopedic specialist
   on November 25, 2004, and on December
   7, 2004, the specialist diagnosed a
   herniated disc that was impinging on the
   plaintiff's sciatic nerve.

Did you get all those dates? Did you jot them down or at least make a mental note of them? You probably expended considerable mental energy trying to keep them straight. Would it bother you to learn that the case actually involves no time-sensitive legal issue and that none of the dates has any bearing on the decision the court must make?

If you ask judges, they'll tell you to resist this "each fact gets its date" approach to writing briefs. There are alternatives that are easier on your reader.

The problem with dates

There's nothing wrong with including dates in a brief--if they're relevant and helpful to the reader. By all means, include relevant dates if you are writing a brief about the statute of limitations, a mandatory presuit notice requirement, compliance with discovery deadlines, or another time-sensitive legal issue. But consider a different approach if time is not essential to your subject. Here's why.

One reason to ditch the dates is their lack of relevance, as noted by Eleventh Circuit Judge Joel Dubina: "A brief should be pared down by reciting essential facts only. Unless a date is material and relevant to an issue in the case, omit it. Most of the time, I suggest, you will find dates are irrelevant." (1)

Dates are also a distraction. When you include unnecessary dates, you give your reader the false impression that there is a time-sensitive issue lurking in the case. Naturally, this will put him or her on the lookout for that phantom point while reading the brief. As long-time Fifth Circuit Judge Jacques Wiener Jr. observed, lawyers who include meaningless dates in their briefs divert the reader's attention from the lawyer's intended message:

   When we judges see a date or a
   series of dates, or time of day, or
   day of the week, ... most of us
   assume that such information
   presages something of importance
   and we start looking for it.
   But if such detailed information
   is purely surplus fact and unnecessary
   minutiae, you do nothing
   by including it other than to divert
   our attention or anticipation
   from what we really should
   be looking for. In essence, you
   will have created your own red
   herring. (2)

When lawyers commingle unnecessary dates with important facts, the reader cannot focus on the important them facts as easily. Noting the prevalence of "unnecessary dates" in briefs, one experienced practitioner commented that "including unnecessary facts will result in a greater possibility that your strongest points will be overlooked." (3)

Unnecessary dates are also a distraction in a more practical sense. They create needless clutter, disrupting the flow of your prose and making it harder for judges to read your briefs with ease. (4)

And what may start as a mere distraction can grow into an annoyance. When a group of California appellate judges were surveyed about the use of the factual record in briefs, "they strongly agree[d] that they are annoyed by immaterial information, such as dates of vents and filings that do not matter." (5)

Chronology without dates

Chronology has been called "the essential organizer" and "the basis of all narrative." (6) The easiest way to tell a story is chronologically, and readers process factual information best when it's presented that way. (7) So how does a writer establish the chronology of events without using dates?

The trick is to focus on the temporal relationship between important events by using words and phrases that quickly capture that relationship for the reader. (8) Use simple words indicating time, such as "then," "after," "before," "following," or "later." Avoid inflated alternatives like "subsequent to," "prior to," and "at that point in time."

Instead of reciting raw dates, you can refer to units of time, such as hours, days, explicitly, months, or years. Just a few explicit time words or references will establish chronolgy. Consider our original example, only this time without any dates:

   Dr. Jones initially told the plaintiff that the
   pain running down the back of his leg was
   from a pulled hamstring. But two months
   later, the plaintiff reported ongoing leg
   pain, and Dr. Jones became concerned that
   there was a more serious injury. The plaintiff
   returned to Dr. Jones three more times
   in the next three months, each time complaining
   that his leg pain persisted. After the
   last visit, Dr. Jones referred the plaintiff to
   an orthopedic specialist, who diagnosed a
   herniated disc that was impinging on the
   plaintiff's sciatic nerve.

Did you miss the dates? Of course not. You understood what happened--and when--just fine. And there were no dates to distract you.

While reading the example, you may have noticed a few spots where the writer calculated the passage of time between events ("two months later," "in the next three months") rather than using raw dates and forcing the reader to do the math. This is a simple technique that pays big dividends for you and your reader. As one commentator put it, "Even if the sequence of events is important, dates alone are nearly impossible for most readers to follow." (9)

When you're writing about a time-sensitive legal issue and you need to include specific dates, consider calculating the relevant time frames for your reader and stating them explicitly. Make it easy for them to follow the story line. For example:

* "On October 23, 2004, two weeks before the close of discovery, defense counsel sent a letter seeking dates for the plaintiff's deposition. Almost two weeks later, on November 4, 2004, the plaintiff's attorney responded with two available dates."

* "The plaintiff learned that she had a possible malpractice claim on March 21, 2001, which triggered the six-month discovery period. She served her notice of intent to sue less than five months later, on August 4, 2001."

* "The court ordered the defendant to produce the documents by February 13, 2004. Nevertheless, the defendant remained uncooperative, producing the disputed records more than two weeks beyond the court's deadline, on March 3, 2004."

The last example shows how doing the math for the reader not only makes the timing of events more obvious, but also gives you an opportunity for advocacy--to drive home a point in a way that you couldn't with raw dates alone.

It takes a sizable investment of mental energy for readers to keep a bunch of dates straight. Include them only if it's absolutely necessary. Even then, use techniques that help the reader immediately grasp important time frames without making calculations from raw dates. Do the math for your reader, and give your writing added persuasive punch and clarity.

Notes

(1.) Joel F. Dubina, Effective Appellate Advocacy, 20 LITIG. 3, 4 (1994).

(2.) Jacques L. Wiener Jr., Ruminations from the Bench: Brief Writing and Oral Advocacy in the Fifth Circuit, 70 TUL. L. REV. 187, 192 (1995).

(3.) Betsy E. Gallagher, Ten Signs That You Need an Appellate Lawyer, FLA. B. J., May 2004, at 67.

(4.) See Raymond T. Elliget Jr. & John M. Scheb, Stating the Case and Facts: Foundation of the Appellate Brief 32 STETSON L. REV. 415, 416 (2003).

(5.) Charles A. Bird, Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court, 4 J. APP. PRAC. & PROCESS 141 (2002).

(6.) BRYAN A. GARNER, MODERN AMERICAN USAGE 145, 146 (2003).

(7.) Id. at 145; see also Brian L. Porto, The Art of Appellate Brief Writing, 29 VT. B.J. 30, 33 (2003).

(8.) See Andrew M. Low, Chronology, COLO. LAW., Mar. 2002, at 32.

(9.) Id.

MARK COONEY is an assistant professor at Thomas M. Cooley Law School Lansing, Michigan.