Spend plenty of time simply “getting” your arguments.
Good briefing is the product of lengthy thought. The raw material for that deliberation is the facts of your case as you contend them to be or as they have already been conceded or determined. Each one of those facts may be the basis for a legal claim or defense, or the means of establishing or defeating the relevance of governing cases. Review them in detail and prepare a timeline—a chronological listing –of the pertinent ones that must be included in your Statement of Facts.
Don’t start writing until you’ve turned the case over in your mind for days—thinking about it while you’re driving to work, discussing it with other lawyers in your firm, even talking it over with friends and family. New ideas may occur to you as you read the leading cases and scholarly authorities. And think not just about your affirmative case but also about the case you can expect from your adversary and the responses you have available.
Don’t produce a first draft too soon. That tends to freeze the deliberate process, closing off alternative approaches that ought to have been explored. Jot down new ideas as they occur to you, but don’t begin writing or even outlining your belief until you have fully exhausted the deliberative process.
Inputs: Antonin Scalia and Bryan A Garner