Writing Tips from the Bench: To Be Persuasive Keep It Simple

An Interview with Justice Mary Yu

COLUMN > Write to Counsel

BY BENJAMIN S. HALASZ

Q. Thank you for joining me! You came to the Supreme Court after an extensive career in the criminal justice system, and you also served on the trial court. Are there lessons about writing that you learned in your earlier roles that influence your writing on the Supreme Court?

A. The lesson that I learned that has stuck with me the most, the one that makes all the difference in the world, is the record. As a former trial court judge, it became really important to me that we be as faithful as we can to what happened below.

Q. Keeping that in mind, how should an attorney writing an appellate brief approach the record?

A. Make sure that the facts lend themselves to where you would like the law to go. I’m always surprised at the mismatch: The actual facts of a particular case might not lend themselves to where the writer wants us to end up.

ORGANIZATION

Q. One of the hardest things about writing a brief is organizing it, especially when you have a lot of issues that you’re trying to cram in. Do you have any tips for how to distill that whole trial court record into a discrete package for the appellate court?

A. Don’t cram a lot of issues into the brief. Be very, very selective even if you have multiple errors. Select what really matters most; maybe pick two or three issues at most. When we get the whole kitchen sink thrown at us, it doesn’t become an appealing case to take, and I think it’s very difficult for us to try to decide what issue is more important to the parties.

Q. When it comes to writing about an individual issue, there are different ways to organize it. Some say, put your conclusion at the start and argue down from the conclusion. Other authors say no, go premise, premise, premise, conclusion. Is there a particular system that you like to see in briefs?

A. I like the conclusion up front. I want to know where counsel wants me to go, and then I’ll read the brief and see if it makes sense. I don’t like having to guess. I don’t like the mystery game. I hope to reflect that preference in my own writing: I want the first paragraph to tell the reader, this is the conclusion or holding.

Q. Are there any other tips that you have about organization of arguments?

A. Because of the volume of reading that we have to do, keep it simple as much as possible. I’m also not impressed with 100 citations. I’d rather have five solid citations that are on point and that make sense—cases that will allow me to understand the issue and the principle of law, and that will help me get to the point you want me to get to.

FACTS 

Q. There can be tension when writing the facts between wanting to tell a good story and needing to give the specific details—the dates, the times, the numbers that really matter for the court. What do you like to see in a facts section?

A. If I come away [after] reading the brief understanding the important facts, then you’ve done a great job. So if there are a lot of dates that are really important, then I would say don’t compromise on it. On the other hand, I’ve read a lot of briefs, especially in criminal cases, that just give us far too many facts about a person’s life that may not be relevant. I care very much about this person’s life, where they grew up, how they grew up; but at the end of the day, some people think it really matters, and it really doesn’t on some legal issues. So, I would recommend working hard to ask yourself: What is the important fact or set of facts that are necessary for the court to understand the issue? Tell us the client story in a concise and clear way and the relevance to the legal question you want us to answer.

Q. Something else that’s challenging with writing the facts is deciding how strong to go on persuasion. As an attorney, you try hard to write the facts in a way that’s going to favor your client. And that’s sometimes in conflict with trying to present the facts in a neutral way, which the justices may have less resistance to. What comes across more effectively?

A. It’s probably something very personal to each justice, but I know I’m persuaded by less emotion. I really like to read simple facts and what appears to be a logical argument. When people insert passion and emotion into their writing, their advocacy feels like it is a bit much, especially in a fact section. I don’t find it very credible. We know nothing is really neutral; but nevertheless, if your writing appears to be closer to neutral, I think it’s more persuasive.

SUPREME COURT BRIEFS

Q. What are the main things that an attorney should keep in mind when rewriting a brief that they may have written for a lower court, one that now they’re going to file in the Court of Appeals and potentially the Supreme Court?

A. I have to say I think the better appellate lawyers are not the trial court lawyers. And it’s because one needs to be removed from what the alleged error may have been that is on review. I think we all would be very defensive about what we did down below and that we would be tempted to defend it. And when the case is on appeal, you really need to look at the big picture; and that’s really hard when you’ve been the one who has tried the case and argued it. Having the appearance of being neutral is really important. You’re asking us to state a point of law either by affirming or changing or modifying it in some way. We wouldn’t take the case otherwise. So help us get there by being a little bit more neutral and logical. In regard to the question of filing your brief in our court, remember that we are an appellate court and that we are not fact finders. A brief in the Supreme Court should be different than what was filed at the trial court, so recycling a trial court brief is not a good idea and it may be a missed opportunity to focus on the law and to advocate for clarity.

Q. What can an attorney do to make their brief stand out in the process of discretionary review?

A. What stands out is somebody who says: this is an area that needs your intervention. We don’t need just this case resolved. This is something that’s going to help resolve a host of questions. And so the public import of it is an important part of that petition for review: It’s not just for the benefit of your client, but it’s for the public good. I don’t think enough people spend time really discussing it. People focus and for good reasons on individuals and individual cases. But that doesn’t make it an attractive petition. We remind ourselves every single month when we’re looking at petitions that we are not an error correction court. And so it’s not going to help us if you’re pleading for a correction of a “misguided” court ruling down below.

Q. To ask it the other way, when you’re opposing discretionary review, are there certain themes that parties sound that tend to be particularly effective?

A. I think what’s effective, even though it’s difficult for us, is to say this is not the court’s role—remind us that there are parameters around our role and function. I think it’s very effective in seeking denial of review. If there’s a legislative fix, we would prefer that. I keep drawing on criminal cases. There is always some healthy tension between what we ought to do and what the Legislature ought to do. It’s the Legislature that really defines sentencing laws, and yet there’s a temptation for us to continue to sort of chip away where we can, to make it more just or to make it more trial-judge friendly. And so reminding us of the parameters within our branch is always a very effective tool.

Q. Another issue that attorneys confront when they’re filing briefs with the Supreme Court is how to take the correct tone toward the Court of Appeals and the trial court when you have to argue that they were wrong. Are there better and worse ways of doing this?

A. I’m always surprised at the negativity towards either the trial court or the Court of Appeals. Having come from a lower court, I have a visceral reaction when you’re calling somebody else unenlightened or uninformed. I really think it would be better to stay away from personifying a decision that came from a lower court. Just say: this is the point of law, this is the error, or this is where we want the Supreme Court to step in and clarify the law. Don’t “dis” the courts.

Q. Another challenge attorneys face at the Washington Supreme Court is filing a supplemental brief. It can be hard at times to make it feel different enough from the Court of Appeals briefs. Are there traits that you feel make for a particularly good supplemental brief?

A. I would say that a good supplemental brief emphasizes certain facts and the law as it should be from your perspective—it should be a good summation leading us to where you want us to end up. At the Supreme Court, we’ll have read those Court of Appeal briefs and feel pretty familiar with how the issues were framed at the Court of Appeals. Focus on your final argument, because we could get lost in the 15 issues that you presented at the Court of Appeals.

STYLE

Q. With the time pressures attorneys face, it can be tough to take extra time on a brief to work on the writing style—especially when you feel like your substance is already there: you have the arguments, you have the cases. How important would you say style is for making a brief persuasive?

A. Style is important. Shrill is really bad. In my opinion, a good style ought to be as neutral as possible, and as logical as possible, because it is persuasive. I’m sure that there would be eight other responses and maybe very different responses from the other justices, but I tend to find myself being persuaded by somebody who is detached from the emotion and who makes the argument clear and simple for me. Professional appellate lawyers who understand what they’re doing tend to know what we are looking for; they understand style and how important it is to manage the emotion of the win and the loss from below.

Q. When I’ve read your opinions, I’ve noticed that your sentences are often short. Why do you choose to write that way?

A. The most important consumer of our opinions has got to be the public, and I have said to my law clerks that our opinions must be accessible and readable. If you’re a member of the public and you’re going to read a court opinion, you really want to understand the concepts and what we are saying. I really believe the simpler, the easier. Your target audience can be very different in terms of the types of cases: sometimes it’s the public and sometimes it’s a civil practitioner or some administrative law practitioners. We always try to start our writing with asking, who’s the audience? And I just think short, clean, concise writing is better. It doesn’t matter whether it gets an award for brilliance. The most important thing is to communicate the message, communicate the law, and make it digestible.

Q. One other thing that I’ve noticed in several of your recent opinions is that you used many quotes, including quotes from the record and quotes from prior opinions. Why is that?

A. It’s so important to me as a former trial judge to know that we’re going to be as faithful as we can to the record. So many of our cases involve an abuse of discretion. And it can be so easily misunderstood what the judge did or did not do. And so quoting from the record is a key way to anchor us into what the case is really about.

The second reason is there’s always a debate about how far we want the law to go. There are some who might say, “You know, you keep pushing us too fast or you’re pushing us in a direction that’s not rooted in precedent.” Quoting shows that it’s rooted in precedent. It’s important for our jurisprudence for people to know that we are not just making it up on a day-to-day basis, and that we really are trying to look back and also forward.

Q. Do you have any pet peeves about things you see in briefs?

A. My biggest pet peeve is reading a brief that only exudes emotion. We have so many juvenile cases and so many criminal cases, and there are some members of the Bar who believe that the more shrill or the more emotion or the more that they can introduce the fact of trauma into the brief, the more we’re persuaded. It works just the opposite. I don’t think any of the justices are motivated by a parade of horribles; again, logic really makes a difference. And the storytelling can get to be extreme or shrill. It’s not persuasive, and it actually harms the case. It harms the movement. It harms the advancement and development of the law.

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INSPIRATION

Q. Any final tips regarding writing a brief?

A. More is never better. I’d also have to say look at the advice that [Judge] Rebecca [Glasgow] gave. The column that featured her is so sound and really is a road map to good briefing and good writing.¹1 Benjamin S. Halasz, Coach the Court: Writing Tips from the Bench, An Interview with Judge Rebecca Glasgow, Washington State Bar News, Sept. 2022, at 20-22.

Q. Many writers say they take inspiration from what they read. Are there any authors whose writing inspires you?

A. This may sound a little hokey, but I’ve been really inspired by people who’ve been incarcerated and their writing. I am inspired by how they write their letters and their ability to capture their life experience and the law; they are the ones who are saying to us: we’re reading your opinions. The most important thing for me these days is to say to them: I hear you, I see you, and I understand. And that has influenced me. The fact that it matters in a deep way to them where the law is going and why there is justice or not motivates me to try to be clear in communicating with them and the public.

NOTE

1.    Benjamin S. Halasz, Coach the Court: Writing Tips from the Bench, An Interview with Judge Rebecca Glasgow, Washington State Bar News, Sept. 2022, at 20-22.