It’s well known amongst the legal profession that the biggest misconception depicted by cinema and other media is typically the amount of time lawyers spend in the courtroom. That is particularly true for civil lawyers. A more accurate depiction of high-stakes litigation would feature mind-numbing b-roll footage documenting endless hours of reading and writing.
In larger firm settings, writing is a task that can primarily be delegated if the managing partner places less value on ownership over the written product. In a small firm, you often have no choice but to hone that skill because you’re often drafting much of your own product. If you’re a young lawyer at a smaller firm, you typically have a smaller set of in-house examples to work from (i.e., a brief bank). Thus, as newer issues arise, you will often see younger lawyers spin their wheels because they don’t have a clear “example” of what they should be writing.
There’s nothing wrong with using your firm’s prior work product to wrap your head around a legal issue or format a brief, but the practice of law is not intended to be cut-and-paste. Prior briefing should be a starting point, not an ending point. The law is frequently evolving, issues are never exactly the same, and sometimes the old brief just stinks. If you’re an associate and you give me the same brief, I wrote five years ago, you didn’t add much value to my practice. You should be looking at the prior brief with a critical eye (e.g., Shepardizing, looking for mistakes, analyzing the nuance of the issues, etc.).
You should also study the evolving work product of the legal community. Briefs, in particular, are not a highly guarded secret. They are available on PACER, sometimes Westlaw, or the courthouse for Minnesota state cases. I often find that much of the best material on unique issues exists in trial court pleadings that, at least in Minnesota, you’ll often only find if you’re reviewing related files at the actual courthouse. (This, of course, goes back to the absurdity of private lawyers not having remote access to public files the way certain government lawyers do in Minnesota.).
Still, if I’m filing a brief at the 8th Circuit, for example, I know who the most respected local appellate lawyers are. You should too. There is no reason not to review their recent briefs to keep abreast of modern stylistic choices, persuasive organization, etc. Even then, those are starting points. It’s your job to tackle your own legal issues, ensure that your brief comports with court and stylistic rules, and to write a persuasive brief in your own voice and style.
