Reading Your Way to Stellar Legal Writing - A Review of “Building Your Best Argument”
by Cecil C. Kuhne III
Reviewed by Nicholas Clyde Mills
In overtime at the 1997 NCAA tournament, Iowa Hawkeye wrestler Lincoln McIlravy won his third national championship. I was a high school wrestler at the time and I watched and studied college wrestlers to improve my skills. Lincoln had a wrestling move that I attempted to emulate. In the move – an arm drag for those familiar with the vernacular – Lincoln would pull on his opponent’s arm, causing him to be unbalanced. Lincoln would then trip his opponent and move behind to score a takedown. Lincoln used this move to win that 1997 NCAA national championship. I recorded and watched this technique repeatedly, drilled it in the wrestling room, and ended up winning some matches of my own with it.
Cecil C. Kuhne argues that an attorney could gain legal writing skills in much the same way. The thesis of his book, Building Your Best Argument, is that by reading and examining the best legal briefs in the country, an attorney can develop greater writing skills. To illustrate how to accomplish this task, Kuhne discusses thirteen common components required of an outstanding pleading and draws from briefs produced by the Solicitor General’s office to highlight each point. Kuhne does a good job of guiding attorneys towards better writing. While Kuhne points out that there are “no magic bullets or secret formulas” to legal argument, this book will help most writers improve their skill set. See Cecil C. Kuhne III, Building Your Best Argument vi (ABA Publishing) (2010).
Kuhne’s first chapter is a basic introduction advocating sound principles for legal writing. Thereafter, Kuhne’s chapters start with a page or two of introductory material on a specific topic, followed by several examples from the Solicitor General briefs. Because he wants to focus only on the writing skills, Kuhne has removed the citations from the briefs and includes only the relevant excerpts. This allows the reader to focus solely on the principles taught and not get distracted – or bored – by a string of citations following every sentence. It makes the book much easier to read and digest quickly. The chapters are well titled, with each title containing a helpful mental cue to remind the reader of the chapter’s content. For example, chapter seven is entitled “History of the Case: The Devil is in the Details” and chapter thirteen is entitled, “Obsessive-Compulsive: Organization is Key.” After reading the chapter the vivid title stimulates the thought process much more than, “Case History” and “Headings for Your Brief” would have. The book’s pattern makes it useful as a writing tool, because it facilitates easy review of each topic.
The best part of the book is the strength of Kuhne’s writing. Chapter after chapter, I was left wanting to hear more of Kuhne’s simple, but powerful pieces of advice. One of my favorites was, “[The judge] is reading not to be entertained, but to make a decision, and he rightfully expects the document before him to assist in that weighty task.” Id. at 51. Kuhne’s writing has neither footnotes nor citations. This approach gives Kuhne’s writing an “insider information” feel. Each chapter reads like a patient senior partner giving sage advice to a young associate. Kuhne writes in a simple, easy-to-understand manner. His words are profound.
Kuhne has also selected some amazing examples to include in his book. While selecting good legal writing examples from the Solicitor General briefs is somewhat akin to selecting a prom date from the Dallas Cowboys Cheerleaders, the examples were really top-shelf. Each chapter had examples from several legal subjects. For example, chapter six has a constitutional, property, tax, and criminal law example. Occasionally, I found a particular example was difficult to understand. But because each section had four examples, I was always able to find one or two in each chapter that were familiar and easy to follow.
This book has some great practical advice coupled with really good examples. While useful to any lawyer seeking greater writing skills, this book will probably be most helpful to the young attorney. If you occasionally sit down to write and think, “Where should I start this section?” or “What should this look like?” Kuhne’s book should be on your shelf. Because the advice is just one or two pages and each example is only a handful of pages, a lawyer can quickly read the parts addressing the skills they are struggling with and be given several great examples.
Building Your Best Argument has several minor shortcomings. First, the book’s advice is probably simplistic for a seasoned attorney. Second, Building Your Best Argument doesn’t have much instructional material. I was often left wondering, “Why should we do it that way?” Kuhne could have rectified this by providing a little more how-to information in some of the chapters. For example, chapter four dealt with the importance of an overview and Kuhne’s introductory notes had some great content about the importance of “memorable lines” in a brief. See id. at 27. But he never developed nor explained how to create memorable lines. I realize that Kuhne’s goal was to merely provide short summaries and great examples, and he delivered on that. But a book entitled Building Your Best Argument implies that the how-to will be provided. Perhaps a better title would have been “Examples of Great Arguments.” Finally, and perhaps, most disappointing is the fact that Kuhne writes only about twenty-five pages of the entire book. This is unfortunate because all the counsel he gave was solid-gold. It was thoughtful and valuable. Kuhne’s abilities and advice deserve to be showcased in a more exhaustive manner.
I thought this book was a good read. It is relatively short – only 265 pages – and it read very quickly. Kuhne did exactly what he set out to do. But if you are really interested in developing the quality of your briefs, I suggest that Building Your Best Argument is not the first book you purchase. The book is expensive – $69.95 – for what you get. Instead, you should first buy and read Bryan A. Garner’s The Winning Brief. I suggest this for two reasons. First, Kuhne seems to be a Bryan Garner disciple of plain language. Kuhne writes in his first chapter, “Straight forward language is therefore preferred over the more pretentious and vague rhetoric.” Id. at 5. And, “So-Called legalese is far less persuasive than straight forward and unadorned language.” Id. Reading The Winning Brief will help explain the premise of Kuhne’s suggestions. Second, The Winning Brief is more informative and is written in a way that allows for greater skill development. After you have read The Winning Brief, then buy Building Your Best Argument. It will be a great supplement and will be much more useful when you have Garner’s solid foundation to build upon.
This book is published and sold by the ABA. If you do not want to purchase the book the law libraries at both the University of Utah and Brigham Young University have copies. Next time you develop writer’s block, pick up Building Your Best Argument. Kuhne’s simple profound advice and the Solicitor General’s stellar examples will stimulate your writing and give you something to emulate.