Doing Less to Argue Better: Three Habits That Weaken Persuasion

COLUMN > Write to Counsel

BY MIREILLE BUTLER

Lawyers are generally well trained when it comes to identifying potential arguments. In law school, students who see all possible theories are rewarded.¹ In practice, the professional value placed on legal research skills can create an incentive to find more authority than the argument requires. And associates have reason to err on the side of over-inclusion: omitting an argument might seem more detrimental than including a weak one.²

Persuasion, however, is not an accumulation process. A brief can become less persuasive as the number of rules, citations, and arguments increases. Once the brief has reached a certain level of complexity, then each additional item requires the reader to put forth a greater effort to determine what is truly relevant. The ability to do less (recite less law, cite fewer cases with more purpose, and raise fewer arguments) is one of the most under-taught skills in the profession. The three habits below are the ones worth avoiding when editing a brief.

Unnecessary Rule Recitation

Too often, lawyers simply repeat the governing rule, as if stating the law were the argument in itself. The analytical step that a rule-only brief misses has been identified in legal-writing scholarship. Professor Alissa Bauer’s empirical study of the 15 most widely used first-year legal-writing textbooks names this step the “rule support” section: It is the portion of the argument that uses precedent to provide concrete factual examples that will later allow the writer to connect the abstract rule to the facts at issue.³ Her review of the textbooks finds them inconsistent about how to teach this step, even though, as she notes, judges and practicing lawyers rely on rule-support cases constantly when they write.⁴

This lesson for drafting is one that Justice Antonin Scalia illustrated in Scott v. Harris.⁵ In that case, Deputy Scott ended a 10-mile, high-speed chase by ramming Harris’s car, leaving Harris a person with quadriplegia; Harris sued under 42 U.S.C. § 1983, claiming that Scott’s maneuver when ending the chase constituted excessive force in violation of his Fourth Amendment rights.⁶ The governing standard was not in dispute.⁷ The Fourth Amendment excessive-force claim turns on “objective reasonableness.”⁸

A brief restating that rule and concluding on reasonableness would not tell a court anything helpful: A reasonableness standard is not an answer to a reasonableness question, and a brief earns nothing by discussing the rule at length and in the abstract. What earns something is demonstrating through concrete facts what “reasonable” meant the last time a court applied it to its own set of facts.

Justice Scalia’s majority opinion is an excellent illustration of this work, as it provides the kind of factual analysis a good rule-support section should draw out. Rather than abstract discussions of the meaning of reasonableness, the opinion analyzes in concrete detail the dashcam video of the chase,⁹ weighs the risk Harris’s driving posed to bystanders against the risk Scott’s maneuver posed to Harris, and concludes that, on those specific facts, the balance favored the officer.¹⁰

In most briefs, when the governing standards are not at issue, reciting and explaining the rules at length is unnecessary. The rules supply the legal question; however, the facts, measured against how the standard had been applied before, supply the answer.

Citations Without Analysis

A related habit that wastes space rather than building persuasion is listing citations instead of explaining why any one of them matters.

Empirical research on what judges want from briefs confirms that this lack of analysis rather than any shortage of citations is what troubles the bench. In a survey of federal judges, only 56 percent reported that lawyers “always” or “usually” made their client’s best arguments, and only 23 percent rated the overall quality of legal analysis in the briefs as “very good” or “excellent.”¹¹ The judges’ complaint was not that lawyers cited too little law; it was that lawyers did too little with the law they cited.¹²

Of course, string citations can be appropriately and effectively used. For example, it is common practice to cite a number of cases to demonstrate that a certain proposition is well within established case law.¹³

The problem arises when the citations replace the analysis rather than support it, leaving the reader to do the lawyer’s work. In Arias v. University of Washington Tacoma,¹⁴ the plaintiff asserted that there was “existing, well-established law” prohibiting the defendants’ conduct and supplied a string citation; the court, however, rejected the argument because the plaintiff did not explain how the cited decisions involved circumstances like those in the case. Thus, for many courts, a citation dropped next to a conclusion, with no explanation of what the citation stands for, is functionally the same as no citation at all.¹⁵

Deleting string citations and choosing one single “right” citation only solves half the problem. Even one citation, if left unexplained, does no more work than a paragraph of them; it is brief, but not efficient. The space saved by cutting multiple cites must be reinvested in explaining the one that remains.

In Scott,¹⁶ the Fourth Amendment excessive force case discussed above, Harris’s strongest supporting authority was Tennessee v. Garner,¹⁷ which held that using deadly force against a fleeing, unarmed suspect was unreasonable absent probable cause to believe he posed a threat to others. A brief could accurately cite Garner for the proposition that using deadly force requires a threat to others. But stating the rule correctly would not be doing the analogical work required to explain how and why Garner’s facts (an unarmed suspect, alone on foot, shot from behind while fleeing) were similar to Harris’s facts (a driver whose flight endangered other people on public roads).

The majority did not stop at the rule. It explained that Garner did not establish “a magical on/off switch” for deadly force, and it distinguished the stationary, largely contained threat in Garner from the ongoing danger Harris’s driving posed to other motorists on public roads.¹⁸ Once that distinction was drawn, Garner became, if anything, support for the officer.

Legal-writing scholars treat analogical, case-based reasoning as one of the core forms of legal argument, alongside deductive and policy-based reasoning.¹⁹ They stress that the analogy does its persuasive work only when the writer draws out the shared facts that justify treating the two cases alike, not when the writer merely invokes the prior case’s name.²⁰ A case citation, therefore, functions not like a label but like a piece of evidence: it supports the writer’s position only to the extent the writer shows the factual resemblance the citation is supposed to prove. A citation (whether strung with others or alone) that names a case without explaining what in its facts made it come out that way is not doing this work; it is merely asking the reader to trust the label. The more useful approach is to state what mattered in the cited case(s), what matters in the current one, and whether the similarity or the difference should control the outcome.

The Everything-You-Can-Argue Habit

The last habit shows that doing less applies to arguments also, not just to rules and citations: It is about raising an argument simply because it is available and legally sound, even when the brief does not need it to win.

Fulton v. City of Philadelphia²¹ shows the potential cost of choosing a broad argument when a narrow one is available. Catholic Social Services asked the U.S. Supreme Court to overrule Employment Division v. Smith,²² the case holding that neutral, generally applicable laws do not violate the Free Exercise Clause even when they burden religion. The Court did not need to reach that question. It found that Philadelphia’s nondiscrimination policy was not, in fact, generally applicable, because the relevant contract gave city officials discretion to grant exceptions.²³ This meant the policy had to survive strict scrutiny “regardless of Smith,” and the Court had “no occasion to reconsider that decision.”²⁴ All nine justices agreed on the narrow ground; the invitation to overrule a decades-old precedent was not accepted.²⁵

The lesson is not that broad arguments are always wrong. It is that every argument opens a decision the court must then make, and a court asked to make an unnecessary decision has an unnecessary reason to rule against the party asking it. A brief should generally lead with, and limit itself to, the argument that lets the court rule for the client on the narrowest available ground, because forcing the court to decide more than necessary invites resistance rather than agreement.²⁶ The constitutional argument in Fulton was not frivolous; it was simply unnecessary, and an unnecessary argument gives the other side a second target and the court a second reason to say no.

Each of the bad habits discussed in this article involves doing more without doing better. A rule recited without application, a citation left unexplained (whether alone or in a string), and an argument raised without being needed all add length while asking the reader to do the work the brief was supposed to do. The winning tactic is not finding more to say. It is deciding, word by word, sentence by sentence, citation by citation, argument by argument, which ones are doing something, and cutting the rest.

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ABOUT THE AUTHOR

Mireille Butler is a teaching professor and the co-director of the Legal Analysis, Research, and Writing Program at the University of Washington School of Law.

NOTES

1. Most law school exams involve “spotting the issue” and professors will give points for doing so, even without analysis. See www.law.virginia.edu/news/video-audio/201811/exam-taking-strategies (Professor Thomas Nachbar stating, “I give a point for spotting the issue”); Megan E. Boyd, “Some Tips on Studying for and Taking 1L Exams,” www.americanbar.org/groups/law_students/resources/student-lawyer/student-essentials/some-tips-on-studying-for-and-taking-1l-exams/ (“If you realize you’re running out of time, you can easily bullet-point remaining issues that you’ve included in your outline. You probably won’t receive full credit, but at least you’ll gain a few additional points by showing the professor that you spotted the issue”).

2. Gregory C. Sisk and Michael Heise, “‘Too Many Notes’? An Empirical Study of Advocacy in Federal Appeals,” Journal of Empirical Legal Studies Volume 12, Issue 3, 578–600 (September 2015). In their study, the authors found that longer appellant briefs were associated with greater success, but they expressly caution that this may reflect case complexity rather than a benefit from simply saying more.

3. Alissa Bauer, “Teaching Cases: How Legal Writing Textbooks Approach the Rule Support Section,” 29 Legal Writing 127 (2025).

4. Id. at 146.

5. 550 U.S. 372 (2007).

6. Id. at 374-77.

7. Id. at 381.

8. Id.

9. Id. at 378-80.

10. Id. at 381.

11. Kristen K. Robbins-Tiscione, “The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write,” 8 J. Legal Writing Inst. 257-84 (2002).

12. Id. at 268-69.

13. See, e.g., Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944–45 (9th Cir. 2015) (citing decisions from various other circuits and stating, “we agree with our sister circuits” in holding that an employee who makes credible threats of violence is not a “qualified” employee under the ADA).

14. No. 3:25-CV-05079-DGE, 2025 WL 2306584, at *7 (W.D. Wash. Aug. 11, 2025).

15. See Schoch v. Bisignano, No. 25-CV-151-JDP, 2026 WL 851196, at *2 (W.D. Wis. Mar. 27, 2026) (citing several Seventh Circuit court cases in support of the proposition that “string citations are not substitutes for analysis”); see also Magers v. Ala. Women’s Ctr. Reproductive Alternatives, LLC, 325 So.3d 788, 789 (Ala. 2020) (“A conclusory statement followed by a string citation does not suffice.”).

16. 550 U.S. at 381.

17. 471 U.S. 1 (1985).

18. 550 U.S. at 382.

19. Deborah A. Schmedemann and Christina Kunz, Synthesis: Legal Reading, Reasoning, and Communication 126-130 (5th ed. 2017).

20. See, e.g., Kristen K. Robbins-Tiscione, Rhetoric for Legal Writers: The Theory and Practice of Analysis and Persuasion 111–13 (2d ed. 2016).

21. 593 U.S. 522, 532 (2021).

22. 494 U.S. 872 (1990).

23. Fulton, 593 U.S. at 535.

24. Id. at 533–34.

25. Id. at 524.

26. See generally Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008) (advising advocates to occupy the most defensible terrain by arguing for the narrowest rule that supports judgment for the client).