Writing a brief is one of the most important things that a lawyer will do, and writing a brief well is a skill every lawyer should have.

That’s why the Omaha Bar Association’s Young Lawyers Division hosted a seminar about effective writing at the Nebraska State Bar Association’s Annual Meeting in La Vista last month.

A panel consisting of attorneys, law professors and judges provided their unique insight into writing concisely, proofreading and revisions, and ethics during the 90-minute continuing legal education session.

When writing a brief, attorneys should keep a few things in mind to make sure they present the most effective argument to the judge who will be reading it — be concise, be precise and don’t forget to proofread.

Omaha attorney Colin Bernard of McGill, Gotsdiner, Workman & Lepp first discussed the importance of writing concisely, which is something he has had to learn how to do over the years.

“One of the things I learned fast is, if you don’t want (the) judge to read your brief, write about 25 or 30 pages, and you’re going to lose interest pretty quick,” Bernard said.

Bernard provided a lengthy paragraph of “legal gibberish” to illustrate his methods for keeping his briefs “as short as possible.”

Some of those methods include:

• Use active voice

• Cut out redundancies

• Avoid commonly used and complex phrases

• Remove “that”

• Remove double negatives

• Reduce or eliminate qualifying phrases

• Shorten sentences

By using these steps, Bernard reduced the length of his paragraph of gibberish by 50%.

Creighton University School of Law Professor Kristy Coté next discussed the importance of revising and editing.

“To me, when I think about editing and revision, it can become overwhelming,” Coté said.

Revising is the process of taking your initial thoughts and building on that understanding, Coté said.

“The revision is where we’re actually, hopefully, learning a little bit more,” Coté said. “Not only about the law, but about opposing counsel, the arguments that are going to be coming at us from that side, from what a third party might be saying if we’re going into the courtroom.”

When revising, Coté suggests shifting your perspective to that of the judge, opposing counsel or even a third party.

“We have to do it to make sure that we’re actually seeing this legal issue or problem for our client from all perspectives so that we can make sure we address it from all perspectives,” Coté said. “The shift in perspective will allow you to see and acknowledge the strengths, weaknesses and concerns of another party’s case.”

Coté also recommends reading your brief out loud — or having someone else read it — to see if there are clunky words or phrases that the reader stumbles over.

“Don’t make editing and proofreading an afterthought,” Creighton Law Professor Dan Real added.

In discussing the ethical requirements of writing briefs, Union Pacific Railroad Co. Senior General Attorney David Newman pointed to Rule 3.3 of the ABA model rules for professional conduct, which reads, in part: “a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Newman used as an example a case involving railway company BNSF and the Swinomish Indian Tribal Community of western Washington state.

In reviewing the terms of an easement agreement between the railway and the Swinomish, counsel for BNSF inserted its own language in place of the exact language used in the agreement.

The agreement states that “only one eastern bound train, and one western bound train, (of 25 cars or less)” are allowed to cross the tribe’s land each day, with the key word being “only.”

In their brief, BNSF lawyers wrote that the agreement allows “at a minimum, one eastern bound train and one western bound train, (of 25 cars or less)” having replaced “only” with “at a minimum.”

When questioned by the judge, BNSF said that “at a minimum” was not meant as a substitute for “only,” but was in reference to part of the agreement that allows for the Swinomish to agree to increase the number of daily train crossings, which the tribe had not done.

Ultimately, the court sided with the Swinomish, stating that the railway did violate the terms of the easement agreement. Regardless, Newman wondered whether BNSF had violated ABA Rule 3.3 by making the substitution.

“The Winning Brief: What Every Attorney Needs to Know about Effective Writing” will be available on demand from the OBA and NSBA later this month. In addition to the video, PDF files of each of the speakers’ presentations will be available as well, with even more tried and true tips and tactics for improving your briefs.