Vermont Bar Journal, Vol. 40, No. 2 Fall 2015, Vol 41, No. 3 - Page 22

The Connection Between Writing Briefs and Remaining Fully Human autumn day in Vermont. As a professional, be accurate in what you write. Do not exaggerate. Skip most adverbs and adjectives.14 If you have thought and written clearly, modifying words should be scarce. If it is true, you do not need the word “very.”15 Aim for the essence.16 You want to get to the point where, sentence by sentence, you, the judge, and the judge’s clerk can fairly say: It’s hard to argue with that sentence; yes, that’s what the court held and the citation is correct; yes, that is a fact here; yes, that’s at least an arguably relevant distinction between what the court decided in case A and what we have here; the other side disagrees, but this is a fair statement. You build credibility sentence by sentence. Write with the logic and clarity of a train moving inexorably along the railroad track. Simplicity of expression is attractive and powerful—but it takes time, discipline, and some art to get there. The practice of law and remaining human are both part of our journey. This is our craft. This is part of our service, and part of our lives. Clients come in, often stressed. It's OK—we can help you with that. Sometimes it is relatively easy. Often it calls for our best. Many of us have had the experience of sending a hasty e-mail with hurtful language we wish we had not sent. There is no 22 excuse for including regrettable language in a brief. In the office or elsewhere, some people seem to think that stressing others makes them more important. But stressing others stresses you. Something one learns in mountaineering and rock climbing is this: Do not add to the stress. If anything, when it is stressful, deliberately focus on being calm and supportive. This is where we need to get. Give people time, including administrative folks. Exercise, not enough time? You know it makes you better, so find the time. Peace, quietness, meditation, spirituality: Whatever way is your way, include some stillness in your life. Prayer? A particular place? Hiking? Sitting with a pet, as a friend? Where is your place of inner quiet? Those personal paths are not distractions. Aside from other benefits, those paths can be a holistic foundation for more effective advocacy. We know life is not the dress rehearsal. It is an ongoing journey for you and others. Connect with others. Remember Plato's wise advice: "Be kind. For everyone you meet is fighting a hard battle."17 Engage in healthy living. Be a member of your community, do some pro bono, connect with others, renew yourself. These things inform who you are and what you do as an effective advocate. They build and inform a mature judgment. This is who I am and what I do. Be authentic. Have comfort in your own skin. Match the power of reason with the insights of empathy, humanity and community. Respect yourself. Do these things and you will be a more effective advocate. Stephen A. Reynes, Esq., has extensive experience in the area of land use law, in the private and public sectors. He also served in the Vermont House of Representatives and Senate, where he was especially active in environmental legislation. Professor Greg Johnson is Director of the Legal Writing Program at Vermont Law School. See Louis J. Sirico, Jr., & Nancy L. Schultz, PerLegal Writing xiii-xiv (2011) (“Novice lawyers may think that persuasive writing requires them to adopt an overblown dramatic style. If so, they might have been more successful has they lived in an earlier era.”). 2 Cicero captured this point about the appropriate focus in advocacy perfectly. When friends told him he was the greatest orator, he responded: “Not so, for when I give an oration in the Forum people say, ‘How well he speaks!’ but when Demosthenes addressed the people they rose and shouted, ‘Come, let us up and fight the Macedonians!’” Quoted in Henry Weihofen, Legal Writing Style 5 (2d ed. 1980). 3 Justice Antonin Scalia and legal-writing expert Bryan Garner concur. See Antonin Scalia & Bryan Garner, Making Your Case: The Art of Persuading Judges 34-35 (2008) (“Cultivate a tone of civility, showing that you are not blinded by passion. Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence 1 suasive THE VERMONT BAR JOURNAL • FALL 2015 of it ¼ [Attacking opposing counsel] undercuts the persuasive force of any legal arguments. The practice is uncalled for, unpleasant, and ineffective.”). 4 See Gerald Wetlaufer, Rhetoric and Its Denial in Legal Discourse, 76 Va. L. Rev. 1545, 1559-60 (1990) (“To be effective, the lawyer must confine his overclaiming in order to preserve his credibility.”); Sirico & Schultz, supra note 1, at 15 (“[I]f you convey an impression that you are thoughtful, honest, and well informed, your message is more likely to be well received.”). 5 See Scalia & Garner, supra note 3 (“You are not there to cajole a favor out of the judges but to help them understand what justice demands.”). 6 See Charles R. Calleros, Legal Method and Writing 376 (7th ed. 2014) (“Judges recognize overstatement and tend to take everything in such a brief with an extra pinch of salt.”). 7 Kristen Konrad Robbins-Tiscione, Rhetoric for Legal Writers 205 (2009). 8 See Calleros, supra note 6, at 376 (“The most persuasive writing style may be one that the judge hardly notices.”). 9 Quoted in, Robbins-Tiscione, supra n.7, at 203. 10 This can be trying at times, especially if your opponent has adopted the bad habits we are cautioning against, but never take the bait. See Bryan Garner, The Winning Oral Argument 101 (2009) (“Always remain cool, calm, and temperate—never agitated and never smug. Listen to opposing coun