Readers know that many attorneys treat a thick brief like a security blanket, so they are primed to skim, skip and forget. They're just waiting for the signal saying: "This brief has stuff you can skip."
But if the reader never gets that signal, he stays glued to your brief. So give your reader a steady stream of only clear, relevant, non-repetitive information.
Start by finding anything irrelevant or redundant, and take it out. For example, lawyers love to date stamp every fact: "On August 12, 2012, …" "On August 14, 2012, …" But exact dates rarely matter. Readers may initially pay attention, but as the dates keep coming, readers skip them. Soon, your reader is skipping a portion of nearly every sentence in your fact section—not a good thing.
But don't we need dates to show the passage of time? No. We can write, "Two days later …," "The next day …" "The next month …" These communicate passage of time without offering irrelevant information.
Similarly, lawyers love including parentheticals defining things and people: "Tom Pham (hereinafter 'Pham')." But would the reader be confused by "Pham" without that parenthetical? No. So all the parenthetical communicates is: "This brief has stuff you can skip."
Even "Mr." and "Ms." are irrelevant unless you have two parties with the same last name and different gender. And even then, first names are probably better.
Also, watch out for successive sentences that repeat the same information: "The department issued the appellant a notice of violation. The appellant requested a hearing regarding the notice of violation."
The sentences' proximity makes it clear what the hearing's about. So the reader perceives the second "notice of violation" reference as needless repetition—a signal to skim.
You'll find many more examples of redundant and irrelevant information. Find them and remove them—before your reader does it for you.
Put down a container before you pour information.
Sometimes readers skip or forget important information because they didn't know it was important. This is a problem, but it's perfectly understandable. We're bombarded with more information than we can process. Our brains respond by culling, retaining only what seems relevant and important, ignoring or forgetting the rest.
But important, relevant information doesn't always self-identify. If a brief mentions that the defendant wore red pants, is that important? The reader could think it's not—and miss something important. Or he could think it is—and be misled by a red herring. In either case, he'll waste brain cycles subconsciously considering the fact's importance—a distraction from the rest of the brief.
So don't make your reader guess. Tell your reader why the information is important before you give the reader that information; put down a container before you pour information.
Credit Stephen Armstrong and Timothy Terrell's brilliant "Thinking Like a Writer" for this example: Imagine I have a carton of milk that I'd like you to drink. You're sitting at a table, so I pour the milk on the table. Then I place a cup on top of the spilled milk and say: "Enjoy!"
You can't drink that milk.
Now, suppose I start by placing the cup on the table. Then I pour the milk into that cup. Voila!
In legal writing, the milk is the information I need you to know. The cup is the information's significance. We have a hard time absorbing information when we don't know its significance. So if I need you to know the defendant wore red pants, I'll first give you a container. I'll tell you that the sole eyewitness saw a man in red pants leaving the bank.
And before I walk you through a detailed case discussion, I'll give you a container. I'll start with the relevant-to-this-case principle of law that derives from the case (e.g. "A defendant's failure to request material evidence does not relive the prosecution's obligation to disclose it.") Then, when I walk you through the case's facts, procedure, holding, and rationale, you'll know where we're going with it.
I'll do the same if I'm discussing a series of cases. I'll start by telling you what the cases collectively hold.
And putting down a container isn't something done once or twice in a brief. It's a principle applied throughout.
Indeed, putting down a container is embedded into many principles of good legal writing. An introduction is a container for a brief or motion. A heading is a container for a section. A topic sentence is a container for a paragraph. Even IRAC (and its iterations CRAC, CREAC, and BARAC) force us to begin arguments with a container: an issue statement, conclusion or bold assertion.
Don't let your reader take the wheel. When readers know how information fits into the puzzle before they read it, they won't skim, skip or forget it.
Read more: http://www.therecorder.com/id=1202734515741/Dont-Let-Your-Reader-Tune-Out-to-Your-Brief#ixzz3ijVZVqZz