Seven Keys to Drafting a Winning Motion, Writ, or Brief

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It’s a fact (that should change) that few dependency attorneys draft motions or writs, and even fewer engage in appellate practice. But motions for summary judgment, to compel, suppress, and exclude evidence; extraordinary writs or writs of mandate; and appellate briefs, responses, and replies are par for the course for most family law and juvenile delinquency attorneys. These types of filings are powerful tools for the zealous advocate – including dependency attorneys. And they force courts to make decisions and develop law surrounding issues germane to our common cause: improving the quality of legal representation for children and families. Regardless of your area of expertise, your legal writing skills are paramount. Here are seven keys to drafting a winning motion, writ, or brief.

1) Grammar Definitely Matters.

Make no mistake: your competence is on the line whenever you put finger to keyboard and draft a legal document. This is doubly true when submitting a document for judicial review. Even now you’re evaluating my blog based in part on my use of grammar. That’s fine. Use it to your advantage. Write clean, simple, and grammatically sound sentences and your argument’s persuasiveness will skyrocket. Fail to do so and your credibility will plummet. There are a handful of common grammar mistakes we can all avoid:

However You Slice It

The word “however” is a favorite among attorneys. Use “however” as a conjunctive adverb to join two simple sentences into a compound sentence, however, don’t over-use it. You may also use “however” to begin a sentence. However, it may make the word look more important than the content of the sentence. Use it sparingly. However you decide to use “however,” be sure you have a clear intent and keep it at a minimum. Sentences with fewer commas are more compelling.

Fewer or Less?

The rule here is easy: use “fewer” for plural nouns and use “less” for singular nouns. Water is less water. Potatoes are fewer potatoes.

What Courts Do

Courts consider, state, hold, find, rule, overturn, and only a handful of other things. Plato is not on the bench, so don’t say the court contemplated, explored, explicated, elucidated, pontificated or any other convoluted verb used to dress up a court’s consideration of an issue. Be precise.

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2) Use Short, Declarative Sentences.

This isn’t a rule so much as it is a stylistic truth: declarative sentences are compelling. Avoid subordinate clauses, for example ones that drone on and on without adding much to the sentence, or that could stand alone if they were broken into a separate sentence. Good writers use several short sentences. They are clear. They are concise. They are exact. And they occasionally use conjunctions to begin sentences to preserve stylistic flow.

3) Ask for Something.

Every motion, brief, or writ should make a specific demand. Don’t take the time to draft an amazing argument and fail to tell the court what you want it to do. Judges frequently complain that attorneys take eons to make their point and then never tell the court what to do about it. Every motion, writ, or brief should end with a statement specifically articulating what the court should do.

4) Use a Formula and Stick to It. (IRAC, TREAT, etc.)

Remember IRAC?  No, not the country; the writing formula. The IRAC structure you learned in law school will never fail you. I = identify the issue. R = state the rule. A = apply the rule to the facts. C = state your conclusion. Use IRAC in your argument paragraphs. There are variations to this theme and they are just as good. Here’s one: CREAC. C = state your conclusion.  R = state the rule. E = explain the rule and case law. A = analyze the facts according to the law. C = restate the conclusion. These formulas work. Trust them.

5) Attach Relevant Documents.

This may vary depending on local court practice, but in my past life as a civil rights litigator, I was required to attach all relevant documents to the filing. I understand this may not be your practice. Courts lacking electronic filing may protest because of the volume of paper. Other courts may only require reference to the record. But when you attach the relevant documents referenced in the motion, it implies a certain confidence in your claims. It says, “Here, don’t believe me. See for yourself.”

6) Address Obvious Counter-Arguments.

Anticipate and address counter-arguments you know opposing counsel will present.  The challenge here is to do so in just two or three sentences. Your argument should take up the vast majority of the brief, but obvious responses should be identified and addressed. Readers may disagree with me on this point, but their disagreement arises from a confusion regarding what constitutes quality arguments. Quality arguments address obvious objections, thus displaying a heightened level of analysis.

7) Never Overstate, Misstate, Misquote or Mislead.

Never misstate the record. It’s that simple. And never misquote a source. Be accurate down to the letter. Avoid editing the court or a statute’s language. Leaving things out seems suspicious and legal rulings may turn on a nuance. Accurate citations build trust in the reader. And misstating the facts, a holding, or a court’s reasoning suggests carelessness at best and incompetence at worst.

You should also avoid meaningless adverbs used in a vain effort to make a weak point seem strong. Clearly this is a bad tactic. Just state your case. If you think the holding is narrow, say “the holding is narrow.” Don’t say “it is obvious that the holding was very narrow.”

It’s hard to overstate the importance of strong legal writing. Its cliché but we should all aspire to write like Hemingway and de-clutter our language. Elegance is the goal. Start with simplicity. The best legal writers make complex issues clear and understandable without losing the complexity. Now go forth and file!


Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

About D. Andrew Yost

Andrew is Senior Staff Attorney at the National Association of Counsel for Children. Andrew has been with the NACC since 2013, and heads the organization’s legal training program. Prior to his legal career, Andrew taught at the secondary and university levels, where he won several awards for his pedagogical innovation and effective teaching style. Andrew designs and delivers the NACC’s legal trainings, provides curriculum consultation to private and public agencies, and uses the classroom to elevate the legal representation of children in the courtroom. He also participates in NACC’s policy initiatives and national advocacy efforts. Andrew holds a JD from Suffolk University in Boston, MA; an MA from Xavier University; and is currently working on his PhD at the University of Denver. On the weekends, Andrew enjoys reading books about medieval England, hiking in the Rocky Mountains with Harry, his Golden Retriever, and rooting for his hometown teams, the Cincinnati Reds and Bengals.

1 Comment
  1. I need a brief summary in support of commutation of unjust sentence application to parole board do you offer such services.

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