Make it your goal to create a sense of physical humiliation in your adversaries when they read your brief.

In Jorge Luis Borges’s “The Theologians” — for my money, the best short story about rival theologians in late antiquity in the Argentine canon — the protagonist Aurelian, Bishop-Coadjutor of Aquileia, spends nine days composing a great manuscript to refute the latest heresy, the Monotoni. He scours his library to quote Plutarch, Euripides, Origen, and Cicero. He composes “vast labyrinthine periods, made impassable by the piling-up of clauses upon clauses.” He “painstakingly” crafts elaborate syllogisms comparing the heretics to Prometheus’s liver, Sisyphus, Pentheus of Thebes, parrots, and “mules chained to tread-mills.” He takes pride in intentional uses of bad grammar as “manifestations of disdain” for the heresy.

Then on the tenth day, he receives the pamphlet from his rival John of Pannonia refuting the Monotoni. He finds it “ludicrously brief” before he reads it. But after he reads it, he feels a “physical sense of humiliation.” John of Pannonia cited only Hebrews 9:26–28 and Matthew 6:7, with a reference to Pliny the Elder’s Natural History. His arguments were “learned,” “measured,” and “universal.” Aurelian is so demoralized he considers destroying his manuscript.

Months later, John of Pannonia is chosen by the Church over Aurelian to lead the refutation of the heresy, and he successfully has the heresiarch condemned and burned at the stake.

THE HERETICS AREN’T GOING TO BURN THEMSELVES

Applying modern metaphors, John of Pannonia wrote a much better brief. The court (here, the fictional Council of Pergamo) much preferred his succinct arguments over Aurelian’s sprawling, disorganized mess. John of Pannonia won his case, and as a reward he received the glory of refuting the Monotoni. The lesson here, of course, is to write more like John of Pannonia and less like Aurelian.

Far too many litigators are willfully indifferent, or worse, writers. As my favorite legal writing consultant Ross Guberman likes to say, lawyers are professional writers, and the highest paid group of professional writers in the world. They need to act like it more often.

I get the sense that much bad legal writing comes from lawyers who think that they are so obviously in the right that they don’t need to do any work. At least in the complex commercial disputes that my colleagues and I typically handle, this is rarely the case.

First, your facts probably aren’t as good as you think they are, and you’re probably over-identifying with your client. True open-and-shut fact patterns tend to get resolved before the parties spend hundreds of thousands of dollars fighting over it.

Second, once you’re dealing with highly complex facts, simply getting them across to a new reader with limited time takes a lot of work. Your amazing fact pattern won’t help you if the judge can’t figure out what happened. Even just following the names of multiple players can easily lose a reader. You want a brief that’s easy to read and won’t make the reader want to throw your brief across the room. Like The New Yorker or Ignition (Remix), you need to work carefully with a craftsman’s eye to make such detail look easy.

Third, if you’re dealing with even vaguely competent opposing counsel, they’re going to think of some colorable argument against your position no matter what it is. You may think it’s a terrible argument, but you still need to explain that to the judge, instead of expecting the court to do your work for you.

In other words, the heretics aren’t going to burn themselves. You need to put in the work to craft a proper argument. John of Pannonia didn’t sit on his hands and figure that the Monotoni were so misguided that they’d go away by themselves. Instead, he took the time to draft and revise a tight, effective brief to achieve his goal.

WRITE TO CONVINCE YOUR AUDIENCE, NOT TO SHOW OFF HOW SMART YOU ARE

To Aurelian’s credit, he realized the importance of writing a good brief, he just wrote a bad one. So don’t write like Aurelian. Don’t ramble. Don’t go on long digressions on cases. Don’t get excited about random secondary sources. Because no one cares about any of that.

Like Aurelian and John of Pannonia, litigators are writing with a clear goal: To convince the reader that they are right. Aurelian’s reader didn’t care about whether he could construct a very clever metaphor involving Euripides. They were fact-based readers, and were reading to answer three questions. First, is the behavior in question heretical? Second, if so, why is it heretical? And third, if it is heretical, what should we do about it? John of Pannonia gave them primary authorities — a gospel and an epistle — and kept it focused.

Judges and clerks are also fact-based readers. They have to read things all day. They don’t care about how smart you are. They don’t care about what the Supreme Court of Ohio or a random 3L who wrote a law review article thinks. They care about how quickly you can explain to them who should win, why they should win, and what should be done about it.

COMMIT NOW TO MORE EFFECTIVE WRITING

If you recognize some of yourself in Aurelian, it’s time to commit now to improving.

Even Aurelian finally learned from his mistakes. Years late — after John of Pannonia had become soft and complacent — Aurelian got his revenge, successfully accusing John of another heresy through an effective quotation from John’s original pamphlet against the Monotoni. John of Pannonia was burned at the stake and all of his written works destroyed. It’s never too late to start becoming a more effective writer.

Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.