It is not an easy task to write an appellate or complex litigation trial brief that persuasively conveys to the court the argument made on behalf of a client. This blog is about methods an attorney can use to do just that. In prior posts I’ve discussed that topic on the macro level (writing both statement of facts and conclusion sections, pacing, give them lists) and the micro level (use of emphasis, spacing after periods, footnotes) because consideration of all those things is important to writing an effective brief. Yet nothing may be more important than the words chosen by the writer to convey the client’s argument.

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Word choice is critical. A sentence can be written two ways, with one version powerful and the other weak. The difference might be just one word. This post is the first in what I hope to have as a series about what I call “power words.”  Different power words have different attributes, but in each instance they are more powerful that their brethren in conveying a complex thought, emotion, or style. The best way to explain this is to discuss the power word that this post will focus on — the word “but.”

Now, “but” is a word that we all probably overused as a child.

“But, Mom, why do I have to eat broccoli?” ….  “But you said I could have cake.”

Perhaps you’ve since abandoned the use of “but.” Bring it back into your legal writing for a real purpose. The word “but” is a power word for the purpose of contrast. One thing lawyers must do in a brief is to distinguish their case from adverse precedent, contrasting the facts and/or law of the present case with that of the precedent. There are many words available to suggest contrast though none may be more powerful than “but.”

In his classic book, “On Writing Well,” William Zinsser refers to “but” as a strong “mood changer.”

I can’t overstate how much easier it is for the readers to process a sentence if you start with “but” when you’re shifting direction. Or, conversely, how much harder it is of they must wait until to the end to realize that you have shifted.

Many of us were taught that no sentence should begin with “but.” If that’s what you learned, unlearn it — there’s no stronger word at the start. It announces total contrast with what has gone before, and the reader is thereby primed for the change.

(emphasis added). Zinsser explains that words lawyers often use for such purposes, “however”  or “nevertheless,” will do the job, though not as well.

When trying to distinguish your opponent’s favored precedent from your present case, “total contrast” is exactly the effect your striving for. Compare this standard passage in a brief:

ABC Corp. argues that Smith is controlling. However, Smith is easily distinguishable. In Smith, the court relied upon the fact that the plaintiff there ….

with this alternative:

ABC Corp. argues that Smith is controlling. But that case is not this case. In Smith, the court relied upon the fact that the plaintiff there …

The substituted sentence … “But that is not this case.” … takes a firm stance that is unmistakable and forceful.  It tells the reader that this case is not at all comparable to Smith, and does so quickly and powerfully, starting with the use of “but” to establish the idea of contrast.

In the battle of appellate briefs filed by heavyweight appellate counsel in the United States Supreme Court on the issue of the constitutionality of the individual mandate requirement of the Affordable Care Act, Solicitor General Don Verrilli began a sentence with “but” when seeking to make a key point of contrast regarding the idea proffered by opponents of the law that the mandate had to be justified based upon Congress’s authority under the Commerce Clause.

Congress’s use of the term “penalty” has significance for purposes of statutory interpretation—most notably for the inapplicability of the AntiInjunction Act, 26 U.S.C. 7421(a). But that does not justify reliance on labels to disregard the taxing power as a source of Congress’s authority to enact the minimum coverage provision.

With the use of “but,” the Solicitor General sought to establish contrast with the prior point made by his opponent, shifting the reader to the idea that taxing power could be a source of constitutional authority.

However you decide to use “but” in your brief to show contrast, remember not to overuse it and to instead save it for a few key points of your argument. This can probably best be done during the editing phase of your brief writing.

Are there any “power words” you favor in brief writing? If so, let me know. I’ll share more I like over the coming weeks.

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