According to legend, friends bet Ernest Hemingway that he could not write a short story in six words. Supposedly, Hemingway returned the next day with his six-word masterpiece, “For sale: Baby shoes. Never used.”
I spend a fair amount of time in court and an even greater amount of time reading briefs and memoranda. There is no single virtue that I have come to value more than brevity, and I am quite sure my boss and many other judges feel the same way. Yet, brevity is apparently not encouraged in the vast majority of our nation’s law schools. It is a virtue quickly forgotten, or a virtue never adequately cultivated.
I thought the lack of brevity, especially in briefs, was a function of billable hour requirements. But I was wrong. Brevity is the pinnacle of good writing, which means it takes a lot more time and effort than slapping together endless pages of marginally sensible garbage. Writing is a carefully crafted skill. While you are young, undaunted, and malleable, make brevity a central goal. Your work product will markedly improve, you will achieve better results for your client, and you will endear yourself to the clerks and the judge.
Writing concise briefs and memoranda facilitates brevity in oral advocacy as well. If you have spent the time paring down and clarifying your position on paper, you are more likely to avoid nonlinear, vague and repetitive arguments, all of which encourage disinterest. The judge will also have a much better grasp of your position prior to the hearing date. Another way to employ brevity in oral arguments is to forgo non-essential repetition of facts. I hear the words, “Since the facts are in the briefs, I will only briefly outline them for you, your Honor” with alarming regularity. What happens next is, quite simply, a travesty. The attorney with a poor appreciation of brevity goes on to talk about the facts of the case for ten minutes before finally getting around to the law. You may think ten minutes isn’t that long, but that is ten minutes where you are talking and no one is really listening. When you finally get to the point, there is a good chance that you’ve already lost the honest attention of your audience. And if you can’t recite the essential facts in a couple of paragraphs or less, the odds of a crisp presentation of the law are wanting.
Brevity is also important at trial. Trials, more than anything else, sap the court’s time. Every day of trial is like an absence from the office for the judge and, quite literally, for the jury. You can employ brevity at trial by stipulating to facts not reasonably in dispute, by avoiding non-essential foundational issues with respect to evidence, and by eliminating redundant or marginal witnesses, to list just a few examples. If you clean up the trial, there is a great chance the jury and judge will pay more attention to the trial and will better understand the nuances of your case.
For more on brevity, check out Julie A. Oseid’s, The Power of Brevity: Adopt Abraham Lincoln’s Habits, 6 J. ALWD 28 (2009).