Not all legal briefs have the same fate. Some go right into the shredding machine, while some are stuck to the first page of the case file for comprehensive understanding. Sarang Khanna, Marketing Researcher and Analyst at iPleaders, gives a few inside tips about what the Judges like to read, and how to change the fate of your case by drafting the winning brief.
Of all the things that lawyers do, two of them count the most in establishing them professionally. The first is to speak persuasively, and the other is to write persuasively. Compelling command over the language can go a long way in making your case unbeatable. Shriya Maini, who is a scholarship and BCL holder from the coveted Oxford University, and a young and renowned practitioner of law in the Supreme Court of India, stresses extensively over the importance of crisp drafting, during her interview on the popular webcast series “An Hour With LawSikho”.
Persuasive briefing is an art, that helps the judge quickly comprehend your case, and the arguments that you rely on in furtherance of the relief that you seek. If there is one thing we know about the judges in Indian courts, it is that they are busy. Extremely busy! And with the paucity of time, comes the steadfast efficiency that helps them understand all apparent and latent fundamentals of any case. A lawyer’s job is to win, and win within the 5-10 minutes that the judge takes to comprehensively understand the case. That’s exactly where the winning brief stands out!
From nailing the choice of words, arguments, tone, and even presentation, the winning brief makes it concise and crystal clear to the judge as to what the nucleus of the case is (even electrons and protons!). While you as a lawyer in your lifetime will draft many more specific documents than just a brief, and you can always rely on popular online materials to build your A-game at all kinds of contract and agreement drafting, but drafting a case brief in particular is massively important for any lawyer who wishes to step inside a courtroom only to shine.
From my past experience of litigating in various courts, and then closely working with a High Court Justice, I might know a thing or two about how to draft and what seems most appealing to a judge when going through a case brief. Let us look at a few pointers that will help you immensely in putting forth your case in a coherent and confident manner.
Compose in an orderly and sensible way
The worst legal drafts that exist are the long-winded, unnecessarily complicated, jargon-full letters that we have all seen and maybe even written ourselves. Can you think of a reason why a brief is called a brief? Tada! You guessed it right. Because it’s brief.
Structuring your case brief in a hard-to-read and harder-to-comprehend manner can even take the most straightforward case out of your grip. When you earnestly start to write and fully understand your own case, is when you will start to treat your daft as sacred and the winning brief will take shape.
Be critical, not creative. Your case brief in not your colouring book where you need to paint a picture out of what suits your imagination. Analyze the need of this brief, realize what you must essentially convey through it, and know your audience and what moves them. Repeatedly edit and sharpen your sentences, and never write a sentence that you can’t easily speak at one go. When you have a serious and robust structure in mind and a flowing order to present your case, you have successfully completed Step 1 of drafting the invincible case brief.
Use Good Grammar – Punctuate for Clarity and Impact
If there is one thing I have learned during my time at the court, is that good grammar makes you trustworthy. Eloquent speaking can suddenly turn the case in your favor and make you appear as a credible source of information to rely on. The same holds true for your writing.
Good grammar is a tool to communicate clearly and effectively. It is not enough just to be understandable, but you also want to be credible and proper punctuation can do wonders to the impact that your brief makes. Especially in Indian courts where most lawyers fail to pay adequate attention to grammatical details in both speaking and writing, a neat and crisply written draft will be picked up by the judge to gain understanding of the case, over the other average draft from your opposition.
Using separate sentences for every issue, breaking up long sentences, highlighting reasons to form conclusions, minimizing the use of passive voice and subject-verb separation, avoiding overworked terms like ‘pursuant to’, ‘in consequence of’ etc., and correctly using dashes, colons and semi colons are some good tips to write a draft that catches the eye.
Persuasive Issue Framing and Oral Arguments
As a lawyer, reading and writing can completely suffice the whole gamut of skills that you need to cultivate. Words are your only tools, and using them effectively is a lesser known art. Personally, during my later years of college and early years in litigation, I had a tough time drafting but I soon realized that it is ONE of the most important skills to learn for a lawyer, if not THE most important.
Being in Criminal Law practice, I knew that the choice of my words could prove either vital or fatal for someone’s life. I couldn’t risk writing a mediocre brief and put my client’s life on the line. I also knew that there is nothing like a natural writer, and it only takes practice to convey persuasively. I started public speaking at every chance I got, wrote for myself just to be able to put my thoughts better on a paper, enrolled in an online course to take care of all technicalities related to legal drafting, and sooner than I knew, I was writing effective material that people resonated with. The importance of practice and proper guidance in the shape of courses, cannot be emphasized enough.
One very important thing related to case briefs that I learned through experience, is that if you have not nailed the issues of the case in the very first page of your brief in a way that anybody can understand, you have failed at your job. As discussed, it takes a judge not more than a few minutes to get to the crux, and your brief should assist in and not frustrate the whole idea of it. Like all legal documents, a brief is also not about the drafter but about the recipient. Define and reason the issue on the first page itself and see the difference.
Strong issues in the case brief will also guide you in making equally strong oral arguments. March forward in your brief through sound paragraphs and keep it to the point. Use vivid before-and-after examples and other similar tricks to put it as coherently as possible. Choose right words in your arguments and appreciate the subtle message that one particular word could send that the other synonym may not.
If you are using your case brief to showcase your wordsmith capabilities, please stop! Nobody likes to read legalese, complicated jargon and redundant words, much less the judges. “We note that”, “We advice that”, “be appraised that”, etc. etc. etc. There are a ton of such phrases that you will find in almost every legal brief that are so redundant that even striking them off completely would make no change in the brief at all.
Nobody talks like that. Do not write with a preconceived notion in mind about how lawyers should write or sound. Keep your writing style authentic, and write like a human being. Gone are the times when using Latin phrases was cool.
But what about jargon? Technical language? Should you paraphrase the legislation or quote it? Well, the talent of the best lawyers in the world is that they can take complex subjects and express them in simple terms. Yearn to become that lawyer, and be yourself.
When it comes to writing, you cannot expect tremendous improvement overnight or just by reading articles like these. Practice is key, and there is no two-ways about it. Clear your mind, establish the purpose of your writing, set up a tone, and most importantly, know your audience, before you start to type. Remember: simplistic writing is the best writing.