Brian Garner Exercise: Lawyers Learn Brief Writing Clarity

• Brian Garner assigns law students an exercise to rewrite appellate briefs by identifying core legal premises and facts.
• Students frequently find professional briefs difficult to understand, with some being too muddled to even identify the central issue.
• The exercise reveals that complex or obscure legal writing is often not strategically subtle but rather a failure of clarity.
• Students discover that essential information is often scattered across briefs, forcing the reader to piece together the argument.
• The assignment emphasizes that clear, logical structure in appellate briefs is crucial for effective legal advocacy and judicial comprehension.

A unique writing exercise, developed by Brian Garner, challenges upper-division law students to critically assess and rewrite actual appellate briefs. This assignment, typically completed overnight, requires students to select a brief from an appellate court's website and then dissect its arguments. The core task involves identifying the primary major and minor premises of the argument—specifically, the legal rules being asserted and the factual circumstances that make those rules applicable to the case at hand.

Once these foundational elements are isolated, students are tasked with reformulating the brief's issue statements. The revised question must be clear enough to be understood by a reasonably intelligent high-school student, reach its question mark within 75 words, and ensure that every word and syllable contributes directly to crystallizing the central problem. This rigorous process is designed to highlight the importance of *appellate brief clarity* and *legal writing improvement* from the perspective of a reader encountering the material for the first time, fostering *persuasive legal writing* skills.

Students are also asked to reflect on their observations during this *Brian Garner writing exercise*. Their findings consistently reveal significant challenges in the clarity of professional legal documents. One student, for instance, reported feeling "stupid" after struggling to comprehend a brief that an experienced lawyer had deemed suitable for judicial review, questioning its actual benefit to the client.

The student reflections from this exercise frequently underscore a fundamental issue: many appellate briefs are exceptionally difficult to understand. One student expressed genuine surprise at the sheer number of briefs that proved "next to impossible to understand," while another found the overall experience "extremely distressing" in light of classroom discussions on effective advocacy. These observations suggest that the problem often lies not with the reader's comprehension abilities, but with the prose itself failing to communicate effectively.

However, the students are not indiscriminate critics. One participant noted feeling "uncharitable" when correcting a brief that was, by their assessment, "generally well-written and easy to understand," indicating that intelligibility made the revision process feasible. Conversely, other briefs were so convoluted and muddled that students could not even identify the core issue they were supposed to clarify, highlighting a significant barrier to *effective legal advocacy*.

Initially, students tend to defer to the presumed expertise of practicing lawyers, assuming that any peculiar phrasing or complex structure serves a strategic purpose. They might speculate that an impenetrable sentence reflects a subtle legal strategy or that omitting an explanation is a deliberate choice to avoid insulting the court's intelligence. Some students even went so far as to check circuit rules to determine if bizarre formatting was mandatory, or preserved unwieldy formulations out of respect for the "legal minds far brighter than mine had crafted them." This initial deference often gives way to a critical realization.

The most significant discovery for these students is that the complex or obscure attributes of many briefs are "not sacrosanct." This emancipating insight marks the point where professional judgment begins to supersede indiscriminate deference. The exercise underscores that while experience may explain certain writing choices, it does not automatically validate them; a lawyer can perpetuate a poor writing habit for decades without it becoming sounder in practice. This realization is crucial for future legal professionals who will soon be filing their own briefs.

Students, acting as proxies for law clerks or judges, gain firsthand experience of how difficult it can be to extract essential information from poorly structured documents. One student, for example, reported finding the central question on page 10, the relevant facts on page 14, and the governing law spread across pages 21 and 22. This fragmented presentation led to the blunt verdict: "It feels like the writer wants me to do her work for her." This highlights the critical need for *lawyers to learn brief writing clarity* to ensure their arguments are readily accessible and persuasive.

Consider the example of a Connecticut marshal's fee dispute. The original brief opened with a bare question: "Was Marshal Marcusi entitled to a 15% fee under the terms of Conn. Gen. Stat. section 52-261a(a)(F)?" A subsequent question introduced the crucial context that the judgment creditor, not the marshal, had pursued the proceedings that generated the funds. However, neither question adequately explained the underlying reasons or mechanisms of the fee dispute, leaving the reader to piece together the narrative. This exercise reveals that prioritizing clear, logical structure in appellate briefs is paramount to prevent misinterpretation and enhance persuasive impact for judicial review.

Lawyers should critically evaluate their appellate brief writing for clarity and conciseness, considering how a judge or law clerk would interpret the arguments. Prioritizing clear, logical structure can prevent misinterpretation and enhance persuasive impact, rather than relying on assumed strategic complexity.

Source: Original reporting via ABA Journal — Business of Law