Sometimes in older movies where one of the characters is a writer there is a scene where you see the writer at his desk, suddenly ripping a nearly blank page from the typewriter or a notepad in front of him, crumpling the paper forcefully, then madly tossing it at a trash can heaped with similar crumpled balls of paper. Ah, another victim of writer’s block.


(Photo credit: john yaya)

When writing an appeal brief and trying to weave together a compelling story of the facts and the law that a judge will find to be a “page turner” (see my March 27 post on “pacing’), a lawyer is not that far removed from a novelist or non-fiction author. In the past, all writers dealt with the problem of the blank notepad or typewriter page that had to be filled with words. Now, it is the blank computer screen and blinking cursor.

Lawyers don’t always think of it as the same, but good legal writing is not that different from writing a short story and, in my opinion, preparing an appeal brief requires better skill in writing than lawyering. Thus, as writers, lawyers have to deal with writer’s block, just as a novelist would. I’ll admit to having had cases of writer’s block while trying to draft an appeal brief. Haven’t you?

While the ability to cut-and-paste text from a trial court brief that is now provided by computers may seem an easy antidote to writer’s block, large-scale copying of text written for the trial court judge before that court issued its ruling is not my favored approach to appellate brief writing. And it shouldn’t be yours.

So what should you do to help give yourself a good start on writing your brief? Don’t procrastinate. That only makes things worse. Time pressures only add to the frustration of writer’s block. Face it the problem head on. Here are a few techniques I have used to break through writer’s block, in no particular order:

First, if I’m still trying to see the “big picture” of the case I may get a large sheet of paper and sketch out an organization or flow chart of sorts, setting forth the relevant facts, the issues ion appeal, the critical cases and the create lines and arrows demonstrating how they relate to each other. Sometimes this helps you see relationships you didn’t realize existed and it always helps me recognize what facts and issues are most important.

Another way to overcome writer’s block is to find a non-lawyer friend or family member and tell them about your client’s case, the issues on appeal, and why your client should win. Speaking with a non-lawyer forces you to simplify the facts and issues to layman’s terms and just the process of talking about the case out loud frees your mind so that ideas should begin to flow.

Yet another thing I may do when I represent the appellant is to dive into the record on appeal and spend time reading pleadings filed in the case. But not those filed on behalf of the client. Reading those aren’t likely to inspire since they were losing arguments. Instead, I read those from the opposing party, which generally evokes an emotional response such as, “Well, that statement is B.S, because nothing like that happened” or “They misstated the holding of that case.” I find if I can get such a response, the passion for the case can overcome writer’s block. However, you must be careful that you don’t let the emotion carry too far into your writing such that you are viewed by the court as being disrespectful to the opposing counsel or trial court.

If those techniques don’t work, then instead of letting time more pass without progress, I will begin writing the sections of the brief that are generally the easiest to write, though they are generally the most boring: the Statement of Jurisdiction; the Statement of the Case, and the Statement of the Issues. While you may have to come back to those sections later and give them a good edit so they fit seamlessly with the remainder of the brief you’ll write later, by getting started writing — on any topic — the words will begin to flow on the computer screen and the writer’s block begins to dissolve.

If you have writer’s block on an appeal brief or just want to discuss your appeal, feel free to contact me through the web site for my freelance legal writing service, Appeals and Briefs by Michael Skotnicki, Esq., found either through clicking the logo on this page or via this link,