First Drafts of Briefs: Can We See Them This Way to Avoid the Agony?

When I sit down to write and look at a blank page, at first, it is hard. This is true whether it’s an informal blog post or a brief to the Seventh Circuit Court of Appeals.

Most people feel this anxiety at the beginning—a little bit of nausea. Perhaps that is why even Supreme Court justices tend to have their law clerks write first drafts. Writing those first drafts seems inefficient and painful.

The Pain of Writing the First Draft

The pain arises from the constant chatter of the inner critic while we’re drafting, especially for those of us with a little bit of a perfectionist bent:

  • A phrase doesn’t express what we are trying to say.
  • Our thoughts aren’t coming out in the right order.
  • Our writing seems disconnected.
  • There are gaps in the argument, but we can’t quite put our fingers on them.
  • The grammar is right, but the flow is wrong.
  • Word choice? We are spending too much time flipping through the thesaurus.
  • Etc.

Our thoughts and mental pictures move too quickly, and with much more nuance, than we can ever express in words. And it sickens us. Almost certainly, what seems brilliant in our minds—at least at first—will not show on the page.

From Struggle to the Polished Brief

But is the writing process merely a method to express the contents of our preexisting thoughts, in congealed, written form? No. The written page (or computer screen) will not merely mirror our unbaked thoughts. Nor should it.

Rather, the first draft will rightfully reflect the struggle of thoughts, working in unruly ways to understand (and express) significant ideas—ideas worth thinking and writing about.

And from that chaos, let’s see whether something emerges: a way of thinking about something that we hadn’t before. And only after that, let’s try to sculpt our masterpiece: evaluate, edit, refine, reorder, delete, add, and edit, again and again.

Former Justice John Paul Stevens had this answer when asked why he, unlike his colleagues (who thought it inefficient), wrote his own first drafts:

I think a judge learns more about a case if he has to put his thoughts down on paper. It helps you think through a case, and when you write it out yourself, you often learn things about the case that you hadn’t realized. It’s part of the learning process and decisional process that I think is really quite important.

Interviews with Supreme Court Justices, The Scribes Journal of Legal Writing 2010, p.42

Don’t expect your first draft to be the end product of your work — it is only the end product of some of your first thoughts.

It is with your second, third, and fourth thoughts (~drafts) that you’ll see it start to come together.

And if you do it right, your reader won’t suspect a thing.


  1. Shamoor Anis says:

    Keep these coming bro. This was really helpful!

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