Here are his three keys:

1. Advocates should use deep issues — that is, multisentence issue statements ending in a question mark by the 75th word. The one-sentence issue should be banned.

This might diverge from what you learned in your legal writing class in law school. But it is, as Justice Scalia put it, Garner’s “greatest contribution to advocacy.”

According to Garner, the key thing in a case is to frame the issues properly. Yet many lawyers frame issues in a way that’s just a rephrasing of “who wins.”

Here’s an example of a deep issue that Garner presented to the audience:

In Missouri, a deaf person who is arrested is entitled to a licensed, certified interpreter. Joe Pearson, a deaf person, was arrested for DWI. Police retained an unlicensed, uncertified interpreter to talk to Pearson. She interpreted Pearson’s words as refusing a breath test. Can this Court revoke Pearson’s license based on the uncertified interpretation of an uncertified interpreter?

You can see how this clearly and concisely frames the issue — and how it nudges the judge in the direction favored by the advocate. For more examples, see The Winning Brief (affiliate link).

2. Advocates should universally adopt the U.S. Solicitor General’s predominant standards for point headings.

 

• Complete sentences of 15-30 words.
• Down-style typesetting — neither initial caps nor all-caps.
• Progression from major to minor premises, followed by points in rebuttal.

 

To see the SG’s standards, check out The Solicitor General’s Style Guide (affiliate link).

Point headings should be complete sentences only, per Garner. Most lawyers treat point headings as an afterthought; that’s the wrong approach. An advocate should figure out the key propositions before rather than after writing the argument section.

In addition to enhancing persuasiveness, following the SG’s standards produces briefs that are aesthetically appealing, especially in terms of the table of contents. With their ugly and inconsistent capitalization and typefaces, “the tables of contents in some briefs filed by major law firms look like ransom notes,” according to Garner.

3. Advocates should use pithy, powerful conclusions — not formulaic verbiage that begins “For the foregoing reasons” or “Wherefore, premises considered.”

Citing Aristotle, Garner noted that every piece of writing has a beginning, a middle, and an end — and the two most important parts are the beginning and the end. So why do lawyers fill the beginning and end of briefs with meaningless boilerplate?

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