As robotics and artificial intelligence advances, certain jobs become displaced. It’s just the natural progression of things. One only has to look at the history of the auto industry to see automation in play. For certain tasks machines are just more efficient than humans.
Author: DANIEL R. SCHRAMM, L.L.C.
I am a sole practice attorney who concentrates, among other things, in appellate advocacy. I also help other lawyers to write their trial and appellate briefs. For many years, I taught law students how to write briefs as an adjunct faculty member for the moot court program at Saint Louis University School of Law.
So, it’s fair to say that I have devoted much of my career to legal brief writing. I’m now closer to the twilight of my career than the dawn. From this perspective, I view with some alarm the wide array of artificial intelligence products that now supplant the role of the lawyer.
These products are designed to perform tasks like law firm management, document review, contact drafting, legal research, and yes, even legal brief writing. This led me to ask the existential question: Will artificial intelligence take over the art of legal brief writing?
My Own Set of “Human” Techniques for Effective Brief Writing
When I was a moot court coach, I encouraged my students to apply what I always considered to be the “human” techniques for effective brief writing. I put these techniques into three broad categories.
1. Grab the Judge’s Attention with a Strong Introduction
You should not force the trial judge to sift through your written argument to figure out your main points. Instead, you want to grab the judge’s attention as soon a possible with a strong introduction. The legal writing expert, Ross Guberman, identifies four types of introductions that are commonly used by the nation’s top lawyers.1
First, Guberman suggests a “brass tacks” model where you highlight the who, what, where, why and how of the brief.
Second, he suggests that you can present a “short list” of numbered reasons why you should win.
Third, Guberman suggests that you try to answer the question, “Why should I care?” Under this model, you try to highlight the potential adverse effects of a ruling for the other side.
Finally, he identifies the “Don’t be fooled” model. Under this last approach, you draw a distinction between the parties’ two contrasting views of the motion and explain why the other side’s view is wrong. In his recent book, Guberman provides examples of each o these four models.2 I encourage you review the book and apply one of his approaches in the introductory paragraph of your brief.
2. Structure Your Argument to Answer the Judge’s Questions
I also encourage you to use Ross Guberman’s approach to structuring the argument of your brief. Under the Guberman approach, you match your structure to the judge’s questions, not your authority. Guberman places great emphasis upon the proper use of topic sentences. Make sure that the topic sentence of every paragraph, if true, helps you win. And make sure that the topic sentences, in sequence, create a cogent argument.3
Most law students are taught to use the traditional TREAT or IRAC format. TREAT stands for Thesis, Rule, Explanation, Application, and a restatement of the Thesis in the conclusion. IRAC stands for Issue, Rule, Application and Conclusion. The approach is essentially the same for both formats. I consider this format to be a useful way of answering the judge’s questions for most legal briefs.
If you apply the TREAT or IRAC structure, I would weave into the format an explanation of why the judge should not adopt the other side’s expected argument – assuming, of course, that you know what that opposing argument will be. In my mind, that is an essential question you ought to try to answer in any legal brief.
3. Keep it Simple
I encourage you to make the arguments in your legal brief simple and easy to read. You should not make the judge’s task more difficult by using convoluted sentences, long paragraphs, abstract sentence subjects, passive verbs, and arcane legal jargon. Follow the trend of modern brief writing by simplifying your memorandum wherever possible.
To that end, I suggest a few basic rules: Try to use short and simple sentences. Resist the temptation to string together related concepts with conjuntions and dependant clauses.
Keep your paragraphs down to no longer than half the page. If a paragraph is running too long, break it up into manageable parts. And to the extent you can, try to use parties, people or courts as the subject of your sentences, as opposed to abstract legal concepts.You should employ action verbs for the majority of your sentences.
Ross Guberman admonishes lawyers to trim “flab and clutter” with an extensive list of specific cuts lawyers should make.4 I direct your attention to a few illustrative examples of such “flab and clutter.” Avoid words like, “clearly,” “obviously,” “plainly” and “patently.”
They add nothing of substance and they can be an irritant to the judge. In a similar vein, avoid bombastic words like “absurd” and “ridiculous.” One lawyer once described the use of such words as “the written equivalent of shouting. 5
Finally, minimize the use of archaic legal terminology. In my mind, there is no justification for using legal jargon like “aforesaid” or “hereinafter.” In the words of Judge Myron Bright of the Eighth Circuit, “Write in English, not legalize.”6
The Role of Artificial Intelligence to Assist in the Writing Process
Can artificial intelligence tools be used to assist with these different writing techniques? For many editorial functions, the answer is an emphatic “yes.” A variety of products are now being developed to assist in the legal writing process.
Yet the programs to this point still cannot perform the more creative function of crafting the argument. How can you create an opening to grab the judge’s attention? How do your structure your argument to answer the judge’s questions. To my mind – and relief – the most creative part of the writing process still requires the controlling mind of a lawyer.
You do not necessarily have to purchase a sophisticated brief writing product to improve your writing. As just one example, Judge Mark Painter suggests that you use what he calls “the 1818 Rule.”7
You should try to structure your sentences so that they average no more than 18 words per sentence, and you should use a passive voice for no more than 18% of your sentences. I encourage you to use the readability statistics from your own word processing software to ensure compliance with the rule.
And by making careful edits, you can improve on your overall readability score. But you have to be realistic. As a general proposition, the typical word processing programs like Word do not consider formal legal citations to be particularly “readable.”
More sophisticated products now offer direct assistance in writing legal briefs. For instance, Ross Guberman is now promoting BriefCatch,TM a new product that provides suggestions and feedback to the lawyer in the editing process. Guberman says his program will suggest edits “based on thousands of alogrithms that reflect the best practices in legal writing, direct input from judges., and analysis of the best legal writers’ styles and strategies.8
This product will give you grades on different criteria as you work through your brief edits.
Other products, like Appellate Brief Templates, will do the essential formatting to speed up the brief writing process.9 So, you can use the template to set up your table of contents, table of authorities, headers, page numbers, block quotes, and sample text. A lawyer must use this kind of product with some care. Formatting requirements vary from one jurisdiction to another, and some rules go so far as to dictate the size and font of your type, margins, and line-spacing.10
Some jurisdictions, like Missouri, have distinct rules for how to frame your appellate brief. .
A third set of products can be used to check your legal research to make sure a line of case law is not overlooked in your brief. For many years now, lawyers have been using online legal data bases to conduct legal research. Law firms rely more and more on artificial intelligence for these kinds of “search-and-find-type- tasks and line spacing.11
In sum, you should view the artificial intelligence products as tools to improve the quality of your written briefs. At least for now, these tools should not be viewed as an existential threat to those of you who value the craft of legal writing. To me, the art of crafting a compelling written argument is more than a mechancial exercise. The human element remains critical to the art of persuasion. The human element allows us to appreciate the stylistic difference between an opinion written by Elana Kagan from one written by John Roberts.
4. See, R. Guberman, Point Made: How to Write Like the Nation’s Top Advocates (Oxford Univ. Press 2011).↩
5. C. Lutz, “Why Can’t Lawyers Write?” 15 Litigation 26 (Winter, 1989, ABA).↩
6. M. Bright, “Appellate Brief Writing: Some ‘Golden Rules,” 17 Creighton L.Rev. 1069 (1984).↩
7.M. Painter, The Legal Writer, pp. 66-79 (3d ed. Jarndyce & Jarndyce Press 2005).↩
12.S. Lohn, “A.I. I s Doing Legal Work. But It Won’t Replace Lawyers, Yet.” N.Y. Times (March 19, 2017). See, https://nytimes.com/2017/03/19/technology/lawyers-artificial intelligence.html..↩
This article contains general information for discussion purposes only. The author is not rendering legal advice, and this article does not create an attorney-client relationship. Each case is different and must be judged on its own merits. Missouri rules generally prohibit lawyers from advertising that they specialize in particular areas of the law. This article should not be construed to suggest such specialization. The choice of a lawyer is an important decision and should not be based solely upon advertisements.
DANIEL R. SCHRAMM, L.L.C.
Attorney at Law
121 Chesterfield Business Parkway Chesterfield, Missouri 63005
Phone: (636) 532-2300
Fax: (636) 532-6002