Geoffrey Kozen, BridgeTower Media Newswires
Persuasiveness of a brief can depend on a lot of things beyond the law it cites: who’s submitting it, who’s writing it, how it looks, and, in the end, how well it’s written. This is especially true for amicus briefs. Ideally, amici truly are the friends of the court that their name suggests. The amicus gives the court a new viewpoint or broader context than the parties, helping ensure that judges are able to fully consider the larger context of a particular case before reaching their conclusions.
That the parties themselves usually don’t present the broad framing amici often do is neither surprising nor problematic. Parties are commonly constrained by length limitations in which they must provide the court with a detailed recitation of facts and procedural history of the particular case, in addition to making selected legal arguments to advance their clients’ particular interests; they are seldom able, even if inclined, to address in detail the interests of society as a whole. They are not expected to think altruistically about the law, nor should they be; the amicus brief neatly fills that gap. At its best, an amicus brief should embrace this role, informing the court of legal and policy implications that may have escaped consideration below and on appeal, rather than advocating that a specific party should prevail.
Despite the socially beneficial theory underlying amicus briefing, however, the practice remains at times controversial, with now-retired Judge Richard Posner one of the highest-profile critics. The reason for that the skepticism is obvious — few amicus briefs live up to their lofty purpose. In practice, most amici are not neutral expositors of overlooked reasoning.
Instead, most pile on in support of a particular side, often offering only duplicative arguments and lending little more than their name to the debate. It’s an open secret to both practitioners and judges that, cynically, supposedly neutral amici are often affirmatively recruited by the parties themselves to bolster the credibility of their positions.
This dynamic raises an obvious problem for any lawyer drafting a brief on behalf of an amicus curiae: how can one adequately represent the client’s interest without being written off as a mere mouthpiece for one of the parties?
The answer is to focus on those other factors, identified above, that may make a brief persuasive. Though the authors of amicus briefs may strive to be dispassionate, no one achieves that goal perfectly. Even the wariest judge can be lured toward a position when presented with a visually pleasing, well-written brief — it’s inescapable human nature.
What does it mean for a brief to be visually pleasing? There’s no one-size-fits-all answer, so the most important step is to know your audience. This is probably not the first time you’ve been advised to “know your audience,” but it’s worth taking some time to think about how judges, and their clerks, are likely to interact with your filings.
Most importantly, we need to think about how computers affect the presentation and interpretation of our briefs. Judges aren’t afraid of computers anymore. While there are inevitably some few holdouts, the overwhelming majority of judges now read case documents from a screen — it’s much easier to bring home or to the bench than an unwieldy stack of briefs and memos. Clerks who went straight through from college to law school may be as young as 24, and not remember a time when digital reading wasn’t the norm.
In general, compared to the lawyer writing for paper consumption, the lawyer writing for digital consumption should break up paragraphs more, and rely more heavily on the use of headings and lists to provide a visual guide to the structure of the argument. They should also avoid underlining for emphasis, which can obscure letters and punctuation, and impair legibility. But in the end, it is the quality of the writing and the persuasiveness of the presentation that wins the day.
The pitfalls of writing for the digital screen may be new to many readers. Most readers, though, are familiar with the idea of writing well. Despite commentators regularly calling for the replacement of the stilted, jargon-heavy legalese with a more conversational style using plain English, too few practitioners have embraced the change. To be effective in your briefing, embrace Hemingway. Amicus briefs should be written in short, punchy sentences, easily digestible by the reader, and each limited to single topic.
Each sentence inexorably builds on the previous, with no leaps of logic required for the reader to make the connection; this is, after all, about making the reader’s life easy. Whenever you change topics or arguments, or otherwise require a reorientation of the reader’s attention, provide headings and an outline so that the reader knows that they’ve entered a new thought process.
If the new topic is connected to the previous, explain how; if it is not, explain why you’re bringing it up when you do. This type of structure minimizes the burden on the reader, and leads to a brief marked by a natural, intuitive flow.
Empirical Scotus is a blog run by lawyer and statistician Adam Feldman, and found at https://empiricalscotus.com/. The blog is “designed to look at contemporary and historical Supreme Court issues at an empirical level,” including “analyzing decisions and oral arguments.”
In a July 2018 article, Empirical Scotus analyzed the Supreme Court’s 2017 term, and in particular, the quality and persuasiveness of amicus briefs submitted. See Getting Rid of those Amicus Blues, https:// empiricalscotus.com/2018/07/16/amicus-blues/. The analysis used cutting-edge software to study what made amicus briefs effective, including review of sentence length, word choice, and structure. After running more than eight hundred amicus briefs through his program, Dr. Feldman found that the top-rated amicus advocate in private practice was Minneapolis’s Mahesha Subbaraman, principal of Subbaraman PLLC.
I recommend that practitioners interested in improving their briefing give one of Mr. Subbaraman’s briefs a quick perusal, with a mind to his style and tone. Notice that his writing is clear and succinct. It doesn’t sound pompous, or self-important; on the contrary, it sounds like Mr. Subbaraman is having a friendly conversation with the reader. His points are not belabored, they are made, and then he moves on. In short, and unlike so much legal writing, his briefs are easy and maybe even fun to read, even if the reader disagrees with his position.
Those of us whose work doesn’t score as well in digital analyses should strive to follow his example, to write briefs that our readers will enjoy, rather than labor through. Whether or not sitting judges will confess to it, there’s real persuasive power in a brief that can be read by a judge after dinner without risk of that judge nodding off to sleep in the living room. Make it a page turner, and you’ve done the judge a service; given the number of briefs judges are asked to read, a welcome break from ordinary writing will make you, and your client, the judge’s best friend.
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Geoffrey Kozen is an associate at Robins Kaplan LLP, where his practice includes membership in the firm’s Appellate Practice and Guidance Group. The group is headed by former Supreme Court Chief Justice Eric Magnuson.
