How to Get the Most from This Book
Helping you to get the most value from this book requires a few additional comments. Each chapter begins with a short overview. Then I provide several examples of strong writing and advocacy.
Each of those examples is accompanied by a short introduction and by several annotations that remark on both the chapter’s core point and on a handful of other noteworthy details. I realize that my approach may jar some readers — this book, by design, is less focused than many writing books on teaching a single lesson at a time; my view is that great lawyers need to be able, in the same instant, to notice issues ranging from a problem with a comma to an opportunity to reimagine an entire field of law. Even so, on the inside cover, this book lists both the takeaway points that appear before the book’s examples and the writing tips in Chapter 16.I recommend that you read each example all the way through without looking at the annotations. Form your own ideas about the example. Pay attention to how the facts or argument build and flow. Assess what persuades or influences you (and what doesn’t). Then look at my annotations, which are just a sideshow; the examples are the main event.
Ten other points warrant your attention.
1. I include a disproportionate number of appellate briefs because they’re where I found the strongest writing. Appellate briefs give lawyers a chance to refine the arguments that they raised at trial. And at the Supreme Court, the writing grows even finer, partly because many of the lawyers are gifted, but also because the briefs are a third draft: each issue was raised at trial and then sharpened during the first appeal. Moreover, the trial judge and the appellate panel (and usually a dissenting judge, another court of appeals, or both) have further crystallized each side’s best arguments. In short, appellate courts (and especially the Supreme Court) are fertile ground for good briefs to grow.
But I devote Chapter 14 to trial motions to focus on some of the key differences between successful motions and successful appellate briefs.2. My citation practice in this book is designed to be intuitive and useable, not to comport fully with The Bluebook or The ALWD Citation Manual. Some of the lawyers’ formatting choices have been altered to prevent the book from looking chaotic or inconsistent.
3. This book’s goal is to expose you to great advocacy, analysis, and writing, not to compile a mound of sentences that comport with some Platonic ideal of good prose. I’m far more worried about the flow and power of an argument than about any individual sentence. If you want to find a handful of bad apples in the roughly 3,500 sentences that I have reprinted, you will succeed. Moreover, if any sentences ruin your enjoyment of a passage, realize that judges will have the same experience: let the handful of lousy lines remind you to hone your own prose.
4. My annotations occasionally question choices that the lawyers made. I point out these choices (often with the word “WARNING!”) not to damn the writing, but to cause you to think about whether you would have made the point differently. Each example has much to recommend it, even when it’s slightly imperfect, and the skilled lawyers who wrote these passages may well have had valid reasons for their choices.
5. It’s hard to find passages that can be dropped into a book without much explanation. I discarded many stellar motions and briefs simply because using them would have required too much background. I have provided some information about each excerpt that I use (except for the Introductions in Chapter 13), but that background is designed to tee up the examples, not to capture perfectly the nuances in each case. I have tried to make it possible to read chapters in whatever order you want, but I recommend reading it from start to finish (unless you want to begin with Chapter 16 to get a primer on style).
If you want just the basics, read Chapters 1, 4, 5, 11, 13, and 16.6. I have placed in boldface one annotation for each example. If you’re pressed for time, the annotations in bold are the ones that most directly illustrate the “Takeaway Point” of each example.
7. This book presents a huge number of strategies. If you use them all, in every case, your writing will be cluttered and chaotic. So learn all of these techniques, but save most of them for some future brief. This compilation is like a playbook in football: your team won’t execute every play in every game.
8. I added line numbers next to the examples. Those numbers make it easier to refer readers to a specific line.
9. Each chapter provides an overview. Some of those overviews track the chapter’s Takeaway Points, but others synthesize or supplement the points made within the chapter.
10. And finally, the book excerpts motions and briefs that won as well as motions and briefs that lost. I sometimes mention the outcome, but generally I do not because I’ve been careful to select compelling arguments — even when those arguments compelled too few judges. Outcomes matter, of course, but some of your cases will be sickly and flawed; seeing how skilled lawyers make a good fight out of a weak case is just as important as learning to play a dominant hand. In fact, one of the most impressive passages in the book (Example 8.3) comes from an argument that the Supreme Court rejected unanimously. Once you see what the argument is built on, you’ll be amazed that the lawyers created a facially plausible argument.
Feel free to email me with any questions or comments — my email address is noah.messing@yale.edu — or to send me any great motions or briefs.
Noah A. Messing
June 2013