Winter 2011

By Wendy S. Loquasto1

I believe I am safe in saying that, as appellate lawyers, we are pretty good writers. We were “stars” in our Research & Writing Classes. Many of us were law clerks and wrote for publication. Others have published articles in The Record and The Florida Bar Journal. Some of us have taught legal writing or appellate advocacy courses. We may have bookshelves full of legal writing books. Dictionaries and thesauri are our friends. Most of us even like The Bluebook.

Over the years, we have all attended numerous appellate practice CLEs, and at each and every one of those CLEs, we hear the same thing from the appellate judges: “Write shorter briefs.” “Write clear and concise briefs.” We all nod our heads in agreement, but under our breath we paraphrase T.S. Eliot — “If I had more time, I would have written a shorter [brief].”

I do not make New Year’s resolutions, so I can’t claim that I started 2010 with a goal of writing shorter briefs. My resolution came to me instead through the “perfect storm” of events. First, I co-chaired “The Art of Appellate Advocacy in Workers’ Compensation” for the Section in October 2009. First DCA Judges Webster and Kahn were on the faculty, and they spoke about how workers’ compensation briefs are some of the longest they read. Criminal defendants serving long prison sentences have shorter briefs with fewer issues. I labeled myself “guilty as charged” based on my 40+ page workers’ compensation briefs.

This past February, I prepared an appellate practice training seminar for some lawyers at Legal Services of North Florida, Inc., with the aim of encouraging them to pursue appeals. In the process of developing the materials, I reviewed a number of legal writing books and articles and crafted my own materials. First DCA Judge Van Nortwick contributed and offered a time calculation that demonstrates appellate judges have an average of only about two hours for each case. So we included the usual advice to write short, concise briefs.

Then, in March, I had the opportunity to attend a writing seminar hosted by stetson University College of Law, which featured Bryan A. Garner, who presented “The Winning Brief,” based on his book by the same name.2 In that day-and-a-half seminar, Garner reviewed his “100 Tips for Persuasive Briefing in Trial and Appellate Courts,” and there it was again — “Try to come in well under the relevant page limit.”3

Finally, in May, I attended a CLE on professionalism, which encouraged me to visit The Florida Bar’s website and all of its professionalism resources.4 This led me to the Henry Latimer Center on Professionalism and the “Ideals and Goals of Professionalism” adopted by the Board of Governors of The Florida Bar on May 16, 1990. One of those aspirational guidelines is “endeavoring always to enhance one’s knowledge and skills.”5

It was at this point that the “perfect storm” arrived with a clap of thunder. As someone who strives for professionalism in my practice, I began to ponder how I could trim my briefs down to that 30-page limit I hear the Solicitor General’s staff talk about. So I pulled out my autographed copy of The Winning Brief and my notes from the Bryan Garner writing seminar I had attended just a few months before.

Madman, Architect, Carpenter & Judge

Through his presentation, Mr. Garner provided tips on composing briefs in an orderly, sensible way and conveying the big picture. Garner uses a “madman,” “architect,” “carpenter,” and “judge” approach to writing.6

The “madman” is the brain-storming aspect of writing. Rather than thinking about writing as a simple matter of finding the law and getting it down, instead approach each brief as an opportunity for creativity. This initial consideration is when thoughts and ideas should free-flow from your mind. Think expansively and jot down ideas as they come to you.7 Always remember, however, that the madman does not get to write the brief.

Exit madman, enter architect. The architectural aspect of writing is planning and stating the issues. Garner points out that this step is the most frequently short-changed one. People simply begin to write too soon — well before they have developed a good working statement of the issues. Writers tend to “knock out” some portions of a brief, thinking they are getting rid of some of the preliminaries before they start on the core of the brief. (Once again, I’m “guilty as charged.”) Garner warns that such writing talks around an issue without piercing to its center. He counsels that one should not compose sentences or paragraphs until a good working statement of the issues is completed.8 This is where his “deep issue” statement comes into play, which I will talk about more below.

Once you have drafted your issue statements, do more research, taking notes as you go along. Tweak or rewrite your issue statements. This stage switches back and forth between madman and architect. As you read a case, think creatively about how it fits into what you are writing. Tie cases in with other cases that relate to your subject. And while you are in this stage, you need to write case briefs — don’t just print the cases and highlight portions of them, because that’s too passive.9

Then it’s time to combine the mad-man and architect by outlining your issues. Garner likes to use a “whirlybird,” which is a kind of nonlinear outline. He finds that linear outlines, with the usual Roman numeral listings, can lock a writer in. With the whirlybird, you start with a circle in the center of the page with the name of your project (“Jones AB”). Draw four curvy “wings” off the circle, each with one of the major points written on the line. Then you draw a series of lines off each wing — “feathers,” which list everything you can think about that relates to the points, including pertinent case law.10 (There are diagrams in the book.)

Once you have a whirlybird full of ideas, you turn to the architect, who will study the whirlybird, determine which point will be your lead, and then begin to build a more traditional, hierarchical outline, picking and choosing which “feathers” to include. The point is that the architect works to arrange the material — there’s no pressure to write at this point. It’s all brainstorming and planning.11

Once your outline is done, the “carpenter” arrives to “build” the brief. The carpenter uses the plan and writes. Garner advises to write a draft straight through without stopping to edit. Carpenters need to work unimpeded, and “judges,” who represent the editing aspect of writing, can be a nuisance at this point. He thinks that a great secret of writing is keeping the judge out of the way while the carpenter works. Learn to write rapidly, and once the writing is done, let it rest.12

The judge then polishes and edits the project. Garner points out that writing and editing are separate functions and that the best writers are rarely the best editors and vice versa. In your role as judge, you’ll look at the words with a different eye, as well as with a different aim.13 This is where you’ll revise and eventually get down to eliminating all those “ly” words.

Finally, there’s proofreading. It’s difficult to do when you have already read through the brief several times as a judge. Garner recommends a fresh pair of eyes, including other lawyers, as well as support staff.14

The Deep Issue

In putting Bryan Garner’s tips to work for me, I found his “deep issue” statement to be the most useful. Why? Because a deep issue statement goes back to the architect stage — developing your issue before you begin to write. I find that actually writing an issue statement as Garner suggests helps me to focus on what’s critical to my argument. It also helps me to present the argument in a planned, logical manner.

So what is a deep issue statement? According to Garner, it’s a means of making your primary point within 90 seconds — framing the issue so that the court understands the basic question, the answer, and the reasons for that answer, all within 90 seconds.15 The deep issue is the ultimate, concrete question that the court needs to answer to decide the point your way. “Deep” refers to the deep structure of the case, not deep thinking. The deep issue is the final question you pose when you can no longer ask “And what does that turn on?”16

Garner has a formula for writing a deep issue. It should be composed of separate sentences and should not start with the word “whether.”17 It should be limited to 75 words — he’s adamant about not exceeding 75.18 It should be written fairly, but persuasively, so it only has one answer.19 It should be cast as a syllogism. You will remember this from your training in logic:

All men are mortal. [Major premise]
Socrates is a man. [Minor premise]
Therefore, Socrates is mortal. [Conclusion]20

Finally, weave facts into your issue to make it concrete.21 So, a deep issue is a series of statements, limited to no more than 75 words, that weaves fact and law together so as to logically lead to only one answer, which is in your favor. Garner says it a little differently, but that’s the idea.

My experience in writing deep issue statements is that it takes time — lots and lots of time — so much so that I began to fear I’d never get my brief done. I often start out with 100+ words. I tweak and trim and I’m still at 80 or 90. Garner comments that some people think their issues are too complex to be reduced to 75 words. His response: “Don’t kid yourself.”22 As I said, he’s adamant about the 75-word limit.

I found, however, that the more I tweaked and tinkered, the more focused I became on the ultimate issue. And, as a consequence, the more focused my argument became. And, lo and behold, my argument was more concise and I was able to write a threeissue brief that was 31 pages! In the end, I decided that spending more time writing the issue leads to less time and fewer pages when writing the brief. Garner’s quote of Herbert Wechsler of Columbia University on this point is reassuring: “Half my time in writing a brief is spent framing the issue.”23

So, you may ask, are my briefs now “The Winning Brief”? Time will tell, but with an affirmance rate at around 85-87 percent, I’m not expecting miracles. Practicing law is more than just winning cases, however, it’s about being a better, more professional lawyer — enhancing your skills. On that score, I have won, because my briefs are now shorter, clearer, and more concise.

Wendy Loquasto

Wendy Loquasto

Wendy S. Loquasto is a shareholder and managing partner in the Tallahassee office of Fox & Loquasto, P.A. She is board-certified in Appellate Practice and works in the areas of workers’ compensation, family, civil, and criminal law. She serves on the Executive Council of the Appellate Practice Section and on the Appellate Court Rules Committee.



1. Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2d ed., oxford Univ. Press 2003).
2. .Id. at Tip 94.
3. See “Professional Practice” on the sidebar of The Florida Bar’s website (www.floridabar. org).
4. Visit the Henry Latimer Center for Professionalism on The Florida Bar’s website at /5D2A29F983DC81EF85256709006A486A/70 A2904F12D21F4785256B2F006CD781?OpenD ocument, and you’ll find the Ideals listed there.
5. Bryan A. Garner, The Winning Brief (2d ed., oxford Univ. Press 2003), at tips 2-6.
6. Id. at Tip 2.
7. Id. at Tip 3.
8. Id. at Tip 4.
9. Id. at Tip 5.
10. Id.
11. Id. at Tip 6.
12. Id.
13. Id. at Tip 7.
14. Id. at Tip 8.
15. Id.
16. Id. at Tip 9.
17. Id. at Tip 10.
18. Id. at Tip 11.
19. Id. at p.87.
20. Id. at Tip 12.
21. Id. at Tip 10, p.80. 22. Id. at Tip 8, p.56.
23.You’ll notice a lot of dashes in this article. That’s Tip 57. Garner recommends “Em-dashes” — three hyphens make an em-dash — for interruptive phrases, rather than parentheses. Id. at Tip 57, pp. 273-74.