Make the Most of Your Mediation: The Brief

By Hon. Lynn Duryee (Ret.)

Lawyers wonder, what’s the point of writing a good brief when it seems that judges barely skim them?  Judges grumble that briefs are notoriously dense and barely readable.  And yet an informative and concise brief is the time-honored way to convince the judge of the merits of your case.  In mediation as well, the brief presents a golden opportunity to have your case viewed by the neutral in the best-possible light, free of annoying objections and interruptions from your opponent.  So is it worth the effort?  According to Chief Justice John G. Roberts, “There’s nothing better than a well-written brief.”

Let’s get to work.  Here are 10 pro tips to make your next brief a winner:

1.  Start writing two weeks before the brief is due.  No one, but no one, can write his best brief the day it is due.  The process of writing and thinking is deep and mysterious.  Even great writers accept that they can only go so far in one day.  You need time to develop your thoughts and arguments.  Set the stage for success by starting the brief well in advance of its due date

2.  Force yourself to complete a draft.  Many lawyers, disheartened by the enormity of the task before them, stare at a blank screen for hours, writing and rewriting the opening paragraph, unwilling to go on until it is perfect.  Instead, try thinking of your first paragraph as a placeholder, something that you will change once you write a draft all the way through.  A terrible first draft will be far more valuable to you the following day than a perfectly crafted opening paragraph because you will have thought about your case from start to finish.

3.  Lead with the big picture.  Your reader needs context to appreciate the details in your brief.  Lead off with a one- or two-sentence introductory description of your case.  For example:

• This admitted-liability high-speed car crash caused traumatic brain injury to plaintiff.This lawsuit between neighbors in Tiburon pits plaintiff’s million-dollar view against defendant’s vintage oak trees.
• Remember, a brief is not a mystery novel; the reader shouldn’t have to wait until the final page to figure out what kind of case it is.

To read on to section 4. Overcome writer’s block, please read the full article from Law.com by clicking here.