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Building a Solid Foundation
Last month's column looked at the "prep work" necessary for a brief. This month, we focus on the framework.
Need I emphasize the importance of a solid framework? Think back to those forts you built out of chairs and blankets when you were a kid. What was the key to hours of fun play as opposed to repeated attempts to unearth yourself from itchy wool blankets? The proper framework.
Need a more current example? Imagine that you are having a house built. You show up at the job site and see the builders cobbling together substandard materials in a haphazard fashion. Now imagine yourself as a client paying for a document that you assembled in a similar way and you can appreciate the importance of a proper framework.
When constructing a brief, it is your strategy that dictates the framework. Time spent thinking about what arguments are your strongest, in what order to place them, and how to make them effectively is time well spent. I emphasize this because I empathize with the desire to jump in and get something down on paper. I also empathize with those who "don't have time" to cogitate on the proper framework because of their hectic work pace. If I may borrow wisdom from some wise source unknown to me (or was it one of the carpenters on "Trading Spaces"?) "measure twice, cut once." You will find that you write more efficiently if you have a clear idea of your goals in mind.
Choose the right material
When constructing the design, think about the type of "materials" you want to use. Do you want to make an argument based on an interpretation of the facts? Argue that the law should be applied in a particular fashion? Contend that the law should be modified? Put forth a policy-based argument? All of these materials have their pros and cons, depending on the circumstances of your case and the procedural posture of the matter. Most of the time, you will find yourself mixing and matching from among these materials.
Make sure that your materials are sound before you proceed. This requires research. You need to have all of your caselaw ducks in a row (I do realize that I am mixing my metaphors here) before you begin. Know which arguments are supported by law and what defenses you must anticipate. Know what materials are out of date; think avocado appliances; by updating your citations. Know which designs are "tired"; think white melamine kitchen cabinets and the "floodgates of litigation" argument. Know which designs just don't function well. If it lacks credibility, it weakens the rest of your framework. And finally, know your weak spots (and you will have weak spots) and select other strong materials to buttress those weak spots.
One of the best ways to be sure that your framework is solid is to test it out. As in most cases, the best thing to do is to consult with an expert. The easiest way to do this in the practice of law is to talk it through with a colleague. I don't mean a hurried conversation in the elevator, I mean a "test run" of your strategy on someone who knows enough to give you meaningful criticism, and someone you trust enough to accept the proffered advice.
In order to make this conversation meaningful, you need to prepare for it. I am all for the "stream of consciousness" conversations that help you develop your ideas, but that is not what I am referring to here. Put your framework together, then try it out on a friendly expert. Sometimes you can fall in love with your own ideas and can't step back to judge their merit. Let someone else provide you with that perspective, and be prepared to return the favor.
The proper framework takes into account the idiosyncrasies of each circumstance but is still founded on solid legal principles. It is well thought out but is flexible enough to accommodate the unexpected. It represents the essence of the function of the document. All else is really just decoration.
Legal Communication is edited by Maureen B. Collins, director of legal writing at DePaul College of Law. Comments, questions, and other correspondence regarding the column may be sent to her at <firstname.lastname@example.org> or DePaul College of Law, 25 East Jackson, Chicago, Illinois 60604.