Building A Better Brief

Ed Note: This article is the final installment of our five-part Writing to Persuade: An Appellate Lawyer’s Guide to Legal Writing series. Read Part One, Part Two, Part Three, and Part Four.

Over the last few weeks, I’ve written about strategies for writing better appellate briefs.

To close the series, I want to highlight a few grammatical tips that will help propel your writing to the next level.

Use Active Voice, Unless You Shouldn’t

Let’s start with using active voice. If you don’t know the difference between the active voice and its maligned twin, passive voice, think of it this way.

• “The baseball broke my window”
• “My window was broken by the baseball.”

The first sentence uses active voice. The sentence’s subject “the baseball” is up front, and we know straight away what it is that the baseball did. The second sentence, by contrast, is passive. It focuses instead on the window’s state, moving the baseball to the end and, thus, minimizing its importance.

Legal writing guides are rife with examples of active versus passive voice, and they’re not wrong to insist that all else equal active voice is superior. Most importantly, active voice clarifies responsibility and strengthens arguments. Compare “The defendant breached the contract” with “The contract was breached by the defendant.” The active version immediately tells the judge who did what. Similarly, “Plaintiff failed to mitigate damages” hits harder than “Damages were not mitigated by the Plaintiff.” Active voice also shortens your prose by eliminating the unnecessary “by X” construction: the active versions above are each two words shorter than their passive counterparts.

But recall I said “all else equal.” There are times when you should revert to passive voice. The key is knowing why we should default to active voice; if you do, then you know when you shift away. Passive voice obfuscates. The politician’s non-apology, “mistakes were made,” is a prime example. Who made the mistakes? No one can say. In general, I use passive voice more often when needed to minimize or distract from my client’s role in a particular fact pattern. Passive voice can also be important when the actor simply isn’t relevant. In my baseball hypothetical, for instance, the passive voice might be appropriate in a paragraph discussing the state of my home.

Use Strong Verbs

I often find myself defaulting to the verb “to be.” I bet you do too. I’ve tried to distance myself from the verb, and you should too.

Compare these two sentences: “Leigh was looking through her purse for her keys” versus “Leigh dug through her purse for her keys.” The first uses a weak “to be” construction; the second replaces it with a vivid action verb that conveys urgency and purpose. Using more active verbs makes your writing more vivid and easier to read.

What is an active verb? An active verb expresses what the subject does, rather than describing a state of being. They tend to be more concrete and vivid, words like “grabbed,” “argued,” or “testified.” Research supports the intuition that active constructions are easier to process. In a 1965 study published in the Journal of Verbal Learning and Verbal Behavior, psycholinguist Philip Gough found that participants understood active sentences more quickly than passive ones. More recent neuroscience research has confirmed this finding: a study cited by Nature found that reading passive sentences actually requires more brain activity than reading active ones.

So where else can your writing benefit from the addition of active verbs? In many briefs, attorneys write that the Defendant “filed a motion for summary judgment.” But it’s better to write “moved for summary judgment.” Sometimes, they describe courts as “holding a hearing” on a motion. But it’s much quicker to say that the court “heard” it.

These simpler constructions save you time and words, and using them makes it more likely that your reader retains what you’ve written.

Avoid Negative Constructions

Let’s start with a definition. “Negative construction” means any sentence that tells the reader what the subject is not rather than what the subject is or does. They typically use words like “not,” “no,” “never,” “cannot,” or contractions like “don’t” and “shouldn’t.”

Research confirms that negative constructions aren’t intuitive and, instead, require an extra “step” to understand. Psycholinguistic studies have consistently found that out-of-context negative sentences are more difficult to process than their affirmative counterparts. In foundational research, Herbert Clark and William Chase demonstrated that participants take longer to verify negative sentences against pictures than affirmative ones, a finding published in their 1972 article in the journal Cognitive Psychology. Later research by Patricia Carpenter and Marcel Just in Psychological Review confirmed that negative sentences require a two-step verification process: readers first process the affirmative portion, then apply the negation.

This extra step forces readers to mentally translate your meaning. And that matters a lot when you’re asking a court for relief. Think about the difference between the following statements: “The court should not affirm the dismissal” and “This court should reverse.” The latter, positive statement tells judges what you want, not just what you oppose. This directness becomes especially important in conclusions and prayer for relief sections, where clarity about your requested outcome matters most.

Sentence Structure and Rhythm

Effective legal writing varies sentence structure while maintaining clarity. Research supports this intuition. The Purdue Online Writing Lab, one of the most widely used writing resources in higher education, advises that “too many sentences with the same structure and length can grow monotonous for readers” and that “varying sentence style and structure can also reduce repetition and add emphasis.” Similarly, readability research confirms that sentence length is “the best single measure of grammatical complexity,” as John Bormuth found in a landmark 1966 study published in Reading Research Quarterly.

Short sentences work best for important points, while longer sentences can develop complex ideas or show relationships between concepts. Consider this progression from a successful brief: “The statute requires notice. The defendant never provided it. While some courts have excused technical notice defects where actual notice existed, no such circumstances appear here. The defendant’s complete failure to notify plaintiffs of their rights triggers the statute’s remedial provisions.” The rhythm builds from simple declarations to more complex analyses, making the argument both clear and compelling.

Closing Thoughts

As this series has highlighted, briefing at every level can benefit from some thoughtful tweaks, which enhance your brief’s readability and the ease with which your reader will understand the content of your argument.

Of course, appellate briefs require different considerations than trial court briefs. Why? Trial courts are busy. Sure, they want to get each case right, but trial judge are often interested in the simplest path to resolution. That disposition makes practical, immediately appealing arguments or solutions stand out in a crowd. In many cases, that means finding a broadly applicable precedent and arguing the case forecloses your opponent’s argument. If you can do that, the trial judge may well feel comfortable ruling in your favor.

Appellate courts are less concerned with the practical solution and worry more about how the rule applied in your case might affect future cases. When writing an appellate brief, there’s more freedom to distinguish that case that, while at first blush seemed binding, from your own. In other words, your tone, and, indeed, your goals, should change when you brief and issue before an appellate court. While it may work in some cases, it’s often not good enough to tell the court that it should simply follow its precedent when there are meaningful distinctions.

Long before the torrent of AI-related sanctions, the Third Circuit sanctioned a lawyer who simply repurposed his summary judgment brief into an appellate brief. The court observed that effective appellate advocacy requires more than simply regurgitating the same legal principles before successively higher courts.