I’m so bad at writing the background/ facts section for briefs… it always gets heavily edited and no one is giving me constructive feedback other than “advocate more”. In contrast, my legal argument section is generally without edits. For context, first defense lit job post appellate clerkship. Is this normal?? Any tips for getting better other than “advocating more”?

There’s a book called Point Made: How to Write Like the Nation’s Top Advocates by Ross Guberman that might be helpful.

DM me if you like, but, in short, you need to put it all up front. I got this when I was a junior associate after a corner office partner said “move it up here.” To me, what I started doing was an “Overview” section back then where you lay out your argument with no case cites, just tell your story. Then go through the jurisdictional stuff, etc., then get to the legal argument. What I did was looking at pleadings (often from the other side) and see what they did. I will guarantee you the issue they have is that everything you draft is in paragraph 20 not paragraph 2.

Write the fact section after you’ve written the argument so you don’t end up with a ton of extraneous facts that aren’t important to the brief. Keep in mind the story you’re trying to tell the reader. What’s the real reason you’re bringing the motion (or the other side is bringing the motion)? How do previous facts support that reason and tell that story? Use strong verbs and active voice and shorter sentences.

I’ll third Point Made. It was required reading when I taught because I use it frequently when I’m writing. As far as the “advocate more” feedback goes… As an appellate clerk/judge, you’re probably used to writing statements of facts right down the middle because courts have to be neutral, right (sure, there are some exceptions, but you get what I mean)? When you write a statement of facts (and questions presented) you want them to read as though there’s only one way a court can decide the case/the facts and the questions should not so subtly suggest the conclusion you want the court to reach. It’s a skill that can definitely be learned, and once you get it you’ll have fun presenting the facts from your viewpoint.

OP, it’s is normal. Law schools and appellate courts don’t teach people to work with facts.

What you need to work on is storytelling generally and developing narratives that make the court want to do what the law says they should do. It sounds like Point Made has helped people so I’d start there even though I haven’t read it. My process is pretty basic - find the injustice that the court needs to address and build your story around that. James McElhaney refers to this as the “moral imperative.” In some cases the injustice is obvious - someone got killed or lost her business or was defrauded. But often the moral imperative is more obscure, especially on the defense side. But there is always a moral imperative of some sort on your side of the case. In an employment discrimination case it might be “It’s unjust to allow a former employee to claim prejudice when he was fired for misconduct, not the color of his skin.” In an insurance coverage case it might be “Plaintiff wants the insurance company to provide coverage that plaintiff knowingly chose not to pay for.” Trust me. I’ve represented some of the most reviled businesses in America and if there’s any defense to a claim there’s always an accompanying moral imperative. You just have to find it. Once you identify why it’s FAIR for your side to win, it’s generally pretty easy to write the story of why that’s so.

A few more points. First, write simply, in noun-verb sentences. Second, tell the story chronologically unless there’s a REALLY good reason not to. Third, avoid adverbs and adjectives, which clutter writing. In storytelling juicy, active verbs are king. Fourth, show, don’t just tell. Pasting key screen grabs of documents into the text is one way to do that. Photos, quotes, and other things that look and feel real are way more persuasive than any form of paraphrasing. Fifth, avoid hyperbole and conclusive language. Words like “clearly,” “plainly,” and “obviously “ are sure fire signs that whatever follows isn’t clear, plain, or obvious. Lastly spend more time thinking and outlining than you do drafting. Just sitting down to write anything without having a clear plan is a recipe for disaster.

Good luck!

Associate 1: If this works for you, that’s great, but I can’t do that. I always have to write the facts, then the legal argument. I actually write the Overview, or summary, first. Then go from there. I’m also one of those people who cannot work on a document unless it is formatted correctly—with all the headings in place. Personal quirk, but all of us have them!

And, I just thought I’d this, OP is being too objective. Only cite those facts that help you. I think that’s what they mean.

Judges often pay more attention to the fact section, just FYI. You are probably looking at your facts from a neutral perspective and drafting your motion accordingly. Don’t do that. Present your facts in the most favorable manner, that’s what litigation is all about.

I got this a lot when I first started in private practice too (after coming off two appellate clerkships). Some of it is just learning how to write more persuasively as opposed to objectively like you would in an opinion. But I think another piece of it is that, when you are junior, you don’t necessarily have a full grasp of what the universe of fact are and the bigger picture of the case. For what it’s worth, I stopped getting those comments after a while (along with the comments telling me to stop writing like a clerk). Also, take some solace in the fact that they think the meat of your brief (the argument section) is good.

You can use the fact section to foreshadow your argument. Making sure you have all the relevant facts (and no extraneous stuff) in your fact section is not enough. The "advocating" starts when you give the reader some ideas about WHY these facts are important even before you get to your argument. Obviously you don't want to argue in your facts section-- you still are just giving the facts and telling the story--but you can lay a ton of groundwork in your facts section to get the ball rolling for the argument. Your reader shouldn't be piecing together why facts matter or how they relate entirely in the argument section.

I always write a really robust fact section to start. Very blandly written, laying out all the facts, even the ones I’m not sure I’ll use, not bothering with anything other than placeholder cites to start. It helps me solidify the fact pattern in my mind.

Then I write my argument. And revise my argument.

Only once I feel good about my argument do I revise the facts. That’s when I trim the excess, reword things to sound more persuasive, and maybe add things I forgot about but ended up citing in my argument.

It’s normal after a clerkship. I had trouble at first advocating a position, rather than just providing a neutral summary of the facts. As noted above, litigation is a battle between stories. What’s your story? Why is your client wearing the white hat? You need to understand that narrative and then draft our facts as you would a story supporting that narrative. Then the trick is dealing with bad facts, documents, etc. But you need to know your narrative, key themes, etc to do that.

For example, your client is being accused of committing antitrust violations. Your narrative is that your client invented a superior product through hard work and innovation and competitors are trying to take through litigation what they couldn’t win through legitimate competition.