Two Tips – Author Guberman Gives Two Brief-Writing Tips And Links To More
These two tips are from Ross Guberman, the president of Legal Writing Pro and the author of Point Made: How to Write Like the Nation's Top Advocates. Ross also is an Appellatology panelist. His short bio is here.
These Two Tips, with examples, are drawn from the brief for the states signed by Paul Clement in the “Obamacare” case.
Use more enumerated lists, and not just in your introductions and preliminary statements. For example:
The federal government attempts to sidestep the tax power problem it would create by insisting that the Court has “abandoned the view that bright-line distinctions exist between regulatory and revenue-raising taxes." … But that is doubly irrelevant. First, there is no analogous doctrine under which Congress treats penalties as taxes . . .
To add speed to your writing and to project confidence, change every "however," "nonetheless," or "nevertheless" to "but" or "yet.” For example:
The modern commerce power is a broad one, as there is little left of the "distinction between what is truly national and what is truly local" under the Court’s present-day notions of "commerce." … But even as the Court has expanded its conception of "commerce," it has not wavered from the notion that the power to "regulate" is the power to prescribe rules for commerce, and it has never suggested that power includes the power to compel the existence of commerce in the first place.
Ross put 140 comments on the Solicitor General's "Obamacare" brief. They’re all right here.