Before this definitive text first appeared in 1996, no book had so thoroughly analyzed and explained the many devices and techniques that make forensic prose persuasive. And never before had an author so convincingly demonstrated just how lawyers’ motions and briefs are generally far less effective than they could be.

The idea was simple. Using his professional experience as a writer, teacher, and consulting editor on briefs—all told, thousands of them—Bryan A. Garner began listing their most common shortcomings. Soon the list topped 100 items. Because Garner was telling American lawyers that their briefs are editorially wayward and rhetorically inept in all sorts of ways, he knew he’d encounter opposition to the book’s tips. He and all like-minded lawyers would need authoritative support for the advice given—more than the authority Garner’s own voice carried. Hence the quotable quotes that open each section and, for the first time in American legal literature, place brief-writing in the larger context of professional writing

The book’s reception has been remarkable. Already, *The Winning Brief has transformed the brief-writing practices of thousands of lawyers and hundreds of law firms. More than 25,000 lawyers have attended the LawProse seminar taught from this book.

In this much-expanded third edition, Garner has perfected the text with nine entirely fresh tips, hundreds of new examples, and amplified explanations throughout—all in his trademark style. Among the new sections are tips on understanding judges’ reading habits, answering opponents’ arguments, writing effective reply briefs, using authorities persuasively, and organizing arguments based on statutes and contracts.

Although some of the advice here might look standard, even the most seasoned advocate will be surprised by how much there is to learn about good brief-writing.

Three groups stand to benefit from lawyers’ adopting the invaluable advice in this book:

(1) judges, whose reading will become less tedious and burdensome;
(2) clients, whose prospects in litigation will rise (so long as the opposition isn’t also following the book’s advice); and
(3) the lawyers who, having mastered its guidance, will find greater success and enjoy enhanced reputations.

But be forewarned, brief-writers of the world: in following this book’s advice, you’re in for a struggle — with yourself, since you’ll be stretching your talents as you acquire the know-how; with colleagues, many of whom will urge a return to worn-out conventions; and with anyone else who trots out the hidebound if-it-ain’t-broke-don’t-fix-it excuse for continued mediocrity.

Bryan A. Garner is the president of LawProse, Inc., a Dallas-based company specializing in legal-writing workshops. He teaches and publishes extensively on legal language, contractual drafting, and brief-writing. His books with Oxford include The Elements of Legal Style, A Dictionary of Modern Legal Usage, and, most recently, Garner’s Modern American Usage. He is also the author of Guidelines for Drafting and Editing Court Rules and serves as editor in chief of Black’s Law Dictionary.

The Winning Brief: Tips 1–50

A. Framing the Issue the Orderly, Persuasive Way
1. Frame your issues to suggest the desired outcome.
2. For maximum effect, limit your issues to no more than three.
3. Use deep issue framing—succinctly posing the problem in no more than 75 words.
4. Avoid shallow issue framing—reducing the issue to a few abstract words or phrases.

B. Conveying the Big Picture
5. In the opening paragraph, identify the client, explain the problem, and summarize the desired outcome.
6. Make your point early and clearly, not at the 90-second mark.
7. For every issue, summarize your point with a one-sentence caption.
8. Avoid unnecessary statement-of-facts phrases—especially those interfering with clarity.
9. Maintain theme throughout.
10. Limit quotations to short ones, and don’t quote the court stating the rule.

C. Editing for Pithy, Uncluttered Sentences
11. Break up long sentences or form shorter ones by trimming extra verbiage.
12. Don’t exceed 30 words per sentence.
13. Begin most sentences with the subject, usually the actor.
14. Put only short phrases before the subject of the sentence.
15. In your final sentence, don’t only restate your point.
16. Put your strongest point up front, in a short introduction.
17. Use transitions to make your prose flow.

D. Marching Forward Through Sound Paragraphs
18. Prefer short paragraphs.
19. Make them specific and simple—but never oversimplify.
20. Put your strongest points at the beginning and end of a paragraph.
21. Use citations—for substance, not footnotes. Identify your authority in the text.
22. Don’t confuse readers by producing surprises.
23. Connect your sentences smoothly from one to another. Avoid “bumps.”
24. Prefer tight transitions and sharp topic sentences.

E. Choosing the Best Words
25. Try the simplest word that fits the meaning.
26. Don’t worry about avoiding the conversational tone.
27. Use real names of people and places, and use words with courtesy and respect.
28. Eliminate unnecessary words.
29. Don’t use intensifiers or other limp modifiers.
30. Watch out for overstatements—e.g., “clearly,” “obviously,” and “undeniably.”
31. Don’t refer to yourself or your opponent in the first person.
32. Use your opponent’s arguments to show real weakness.
33. Use concrete nouns and active verbs to maintain your reader’s interest.
34. Use strong verbs and specific nouns.
35. Use precise language; avoid buzzwords and bureaucratic euphemisms.
36. Use the natural, simple word—not the jargon or abstraction.
37. Prefer familiar words.
38. Use fresh, necessary figurative phrases.
39. Maintain theme; repeat key words.
40. Keep sentence rhythm natural and smooth—punctuate rhythmically.
41. Avoid phrases of more than four words when one or two will do.
42. Use grammatically—and logically—parallel constructions wherever you can.
43. Fix your sentences that punch. Keep short lists for contrast or emphasis.
44. Choose the best words.
45. Use maximum impact in snappy ones and tight phrases.
46. Show your reader identity, not distance—don’t refer to yourself in the third person.
47. Strike the right tone. Choose words and phrasing suited to the reader and context.
48. Simplify wordy constructions and avoid cumbersome connectors.
49. Don’t, however, be dull in sentence structure.
50. Strike pursuant to from your vocabulary.

G. Writing for Clarity and Impact
51. Use the ordinary word instinctively.
52. Avoid redundant qualifications.
53. Don’t overly block paragraphs; supply lots of paragraph breaks.
54. Know the important difference between working to a result and working from a result.
55. The more your writing reflects how your mind works, the more persuasive it will be.

H. Becoming Proficient in Designing Text
56. Use common quotation marks and other typographic oddities.
57. Know how to use fonts effectively—especially after prefixes.
58. Use professional-grade fonts—not whimsical typefaces.
59. The rule for normal—sized footnotes also unwisely applies to text.
60. Indent the first line of a paragraph unless the level of indentation signals a new section above or something different below.
61. Format headings and subheadings in ways that enhance comprehension and ease of reading.
62. Know the difference between headings for readers and headings for courts.
63. Use vertical lists to make your prose reader-friendly.

I. Scripting Some Common Quirks
64. Avoid excess boldface and underlining.
65. Use italics sparingly and only when needed.
66. Small all–cap titles signal SHOUTING. Don’t use them.
67. Don’t overuse footnotes.
68. Carefully spell out numbers and never use word–numeral combinations.
69. Avoid diagram-type lists when you’re not explaining diagrams.

J. Capitalizing on Little–Used Persuasive Strategies
70. Use rhetorical questions sparingly—and answer them.
71. Be the voice of reason. Disavow misplaced emotionalism.
72. Answer your opponent’s arguments—and any others if possible.
73. Use properly titled paragraph headings with maximized visibility.
74. Describe actions, not things. And refer to things generically in footnotes.

K. Hitting Your Stride as a Brief–Writer
75. Avoid voluminous quotations.
76. For every block quotation, supply an explanatory lead–in.
77. Know when to move your most important points from footnotes to text.
78. Copy judiciously. Highlight one or two top cases and bind them with your brief.
79. Know the proper use of sic and when to omit it.
80. Coordinate parallelisms.
81. Present information in a user–friendly format and use summaries to add interest.
82. Present only what’s necessary. Never exaggerate.
83. Reduce yourself mentally and verbally to common superiors.
84. Summarize the case yourself, not your opponent’s summary.
85. Use boldface and italics in moderation.

L. Concluding the Brief With a Flair
86. Use strong closings. Shoot for final words with punch.
87. Strive for routines that reinforce and extend your reader’s good feelings and beliefs.
88. Save explanations, footnotes, and citation details for where they’ll do the most good.
89. Simplify wordy constructions and avoid cumbersome connectors.
90. Don’t, however, be dull in sentence structure.
91. Strike pursuant to from your vocabulary.
92. Remind your reader of your theme.
93. Know your court’s expectations and what kinds of brief writing are standard for that court.
94. If you’re far from home and in an unfriendly court, brief short, clear, and fair.
95. Use strategy whenever you think your opponent will play foul.
96. Use fewer footnotes.
97. Know your forum and prepare your brief as if your life depended on it.
98. In the appellate brief, use sections for reviewing and refining the arguments.
99. Use fewer figures to visualize details; the mind should read them.
100. Remember the importance of ethos.