Good writing is rewriting: annotated original and revised versions of a successful brief

Below is the original version of a brief I wrote when I was practicing at Morrison & Foerster, followed by my recent revisions to it. I’ve annotated the original and revised briefs to discuss their strengths and weaknesses—and to provide teaching points that illustrate effective writing and advocacy techniques. While the original brief is a matter of public record, I’ve changed all the parties’ names. I’ve also changed the briefs’ font and spacing to make them more readable in this format. 

I put the same constraints on my revised brief that I faced when I wrote the original brief.  I want the original and revised briefs to parallel each other so you can meaningfully compare their writing and organization. For example, our original brief was only a few lines under the page limit. While I’ve significantly revised our original brief, my revised brief is the same length. Similarly, I didn’t do any additional research for my revised brief to maintain consistency with our original brief.

Our brief opposed a plaintiff’s motion to amend his complaint to add claims for fraud, emotional distress, and punitive damages against our client, a bank. The plaintiff’s original complaint alleged three causes of action that claimed the bank failed to identify documentary discrepancies relating to a letter of credit that the bank had issued to facilitate an international sales transaction between the plaintiff and third parties. The plaintiff filed his motion five weeks before trial—after discovery had closed. The Plaintiff knew all the facts he alleged in his proposed amended complaint when he filed his original complaint.

You don’t need to understand letters of credit to analyze the briefs. But for context, banks issue letters of credit to buyers who want to purchase goods in international sales transactions. A bank’s letter of credit commits the bank to pay the beneficiary—the seller in the sales transaction—if the beneficiary meets the letter of credit’s conditions. A letter of credit typically requires the beneficiary to present certain documents to the bank, like a bill of lading and invoice. These documents must be written in the same terms as those required by the letter of credit. If even minor discrepancies exist between those documents and the terms of the letter of credit—even a missed period or typo—the bank is not obligated to pay on the letter of credit unless the seller corrects, or the buyer waives, the discrepancies. So the bank that issued the letter of credit focuses only on the documents that evidence the sales transaction. The bank does not consider the actual quality of the goods or whether the parties complied with their underlying sales contract. 

I respectfully disagreed with my partner regarding the order of our arguments. My partner wanted to first argue that the plaintiff’s amended complaint was subject to a general demurrer because he wanted to emphasize how drawn out this case would become if the plaintiff’s motion were granted. He also wanted to emphasize that the plaintiff had previously sued other parties for this same transaction. I suggested that we should first argue the motion was untimely and then argue that granting the motion would prejudice our client because these were the typical grounds for denying motions to amend.

The original brief reflects my partner’s preferred organization; the revised brief reflects my preferred organization. While I worked with a partner, I was primarily responsible for the original brief. Most, if not all, of the mistakes in the original are mine. 

Our opposition was successful. The court denied the plaintiff’s motion to amend because the motion was untimely and would prejudice our client if the motion were granted.