Legal briefs are the cornerstone of legal knowledge sharing. A legal brief is more than just a document; it’s where persuasive legal advocacy begins.
In a profession driven by words and precedents, the potency of a well-written brief cannot be underestimated. In this guide, we’ll dive into the anatomy of a legal brief, the art of crafting compelling arguments, and the best practices that every legal professional should imbue in their everyday work.
At its core, a brief distills complex legal arguments and intricate fact patterns into a concise, coherent narrative. For law students, new attorneys, and other novice legal professionals, mastering the art of brief writing is essential.
While a legal brief may initially be used between colleagues to gain knowledge on a particular topic or set of facts, the usefulness of the brief can extend well beyond the four walls of the firm.
For example, a brief can ultimately serve as a roadmap for the court, shedding light on the pivotal issues and arguments while also strategically positioning a case for success. A brief might also be used to educate a client who is facing a critical crossroads in their case.
Before we do that, however, I want to be clear on something: In this post, we’re primarily talking about the kind of informal legal brief that attorneys and other professionals will prepare for one another in order to gain knowledge on a particular topic. While the contents of this sort of brief may ultimately be copied into a motion or other pleading submitted to the court, here we’re talking about a memorandum intended for the attorneys and, at times, their clients.
With that caveat, let’s begin.
Unless you’re a brand new attorney working at a solo shop that you opened yesterday, I guarantee that you are not the first person within your firm to write a legal brief.
In fact, most firms have brief templates that they like associates and paralegals to use time and time again. In addition, particular attorneys may have tweaks to that brief format that they like included in the work you perform for them.
Thus, before you do any work on your first legal brief (and before you follow our suggestions, chapter, and verse), the very best thing you can do is to ask the assigning attorney for past examples of well-constructed briefs. That way, you won’t have to guess at how to be successful in the eyes of the people who sign your paychecks.
Before we explore the meaty parts of a brief, let’s start with the basics. After all, understanding its structure is tantamount to understanding its power. Let’s deconstruct the components of a legal brief:
Introductory and identifying information
I hate to admit it, but when I began practicing law, email was a new-fangled technology that was distrusted by most older members of the firm. That meant that all legal briefs were printed out and distributed manually. While that may seem silly today, it taught me a useful habit that I still use. At the top of your brief, be sure to demarcate who it’s for, who wrote it (presumably, you), the date it was written, and the subject matter of the brief. That way, when someone inevitably pulls your document out of the cloud ten years from now, they’ll know exactly what was written and when — and they can ask you directly about your analysis.
If you’re writing a brief pertaining to active litigation, be sure to identify the parties involved, the jurisdiction, and the case number.
This information helps from an organizational standpoint when your firm has several matters pending for one client.
If your brief turns out to be lengthy (say, ten pages or more), a table of contents will serve as a vital organizational tool.
As you know, this section provides an overview of the brief’s structure and will help the reader quickly locate specific sections or arguments.
This is a list of all legal authorities cited in the brief. It includes cases, statutes, and other sources, providing a roadmap of the legal foundations upon which the brief relies.
These are particularly useful for colleagues who may be using your brief as a research launchpad on another case that presents similar issues.
Of course, today, all authorities within your brief should be hyperlinked so they can be easily accessed by the reader.
Before you dive into the details of the matter at hand, give readers a brief snapshot of the case. Introduce the core issues at hand, highlight facts that are critical to your conclusion, and reveal the ultimate goal of the brief.
“This brief analyzes whether a California Court can exercise personal jurisdiction over our client, a permanent resident of Texas. The purpose of this brief is to determine our client’s chances at prevailing on a Motion to Dismiss for Lack of Jurisdiction.”
As you can see, this sets the tone for the work that follows.
If you attended law school, you should already be intimately familiar with the FIRAC method since it is likely how you were taught to organize your law school essay exam answers.
But in case you need a refresher, here are the components you must include:
The narrative section of the brief, where events and circumstances leading to the legal dispute are laid out. In order to build credibility, it’s crucial to present these facts clearly and without bias.
Example: “Our client, a traveling salesperson who is a permanent resident of Texas, was personally served with a complaint at his home in Austin.
The complaint was filed in San Diego County Superior Court. The Plaintiff, a resident of that county, alleges that he suffered damages after our client negligently rear-ended the Plaintiff on the I-5 freeway during a business trip.”
(or questions presented): This section frames the specific legal questions the court must ultimately address.
They’re often phrased in a way that leans towards the desired outcome.
Example: “The issue is whether our client can prevail on a Motion to Dismiss for Lack of Personal Jurisdiction based on the fact that he is not a resident of the State of California.”
These are the statutes, regulations, and case precedents that address the issue at hand.
Example: “California Code of Civil Procedure § 410.10 says, “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” In International Shoe Co. v. Washington (1945) 326 U.S. 310, 316, the United States Supreme Court held that a “state may constitutionally exercise personal jurisdiction over a nonresident as long as he or she has ‘minimum contacts’ with that forum such that ‘maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
The crux of the brief. Here, legal reasoning is applied to the facts of the case.
Example: “Under International Shoe, our client’s use of a California freeway for the purpose of conducting business in California is likely a sufficient “minimum contact” with the state to justify a California court exercising personal jurisdiction over him.”
A recapitulation of the main arguments, coupled with a clear statement of the likely outcome.
Example: “Based on the foregoing, it is unlikely our client will prevail on a Motion to Dismiss for Lack of Personal Jurisdiction.”
Tips from an old pro
Obviously, the above example is a simple one — rarely do actual cases have such cut-and-dried answers.
Indeed, a typical legal brief will include several intertwined issues pertaining to your client’s case and require analysis of multiple sources (statutes, case precedents, secondary sources, etc.).
That’s probably obvious. Here are some tips, however, that may be less obvious to a new legal professional:
In the case example, we used in this post, it was pretty clear that our client had no chance of prevailing on a Motion to Dismiss.
I used that type of example for a reason. The truth is, sometimes the facts and the law simply won’t align in your client’s favor — and you need to be prepared to communicate that truth to bosses and clients who may be disappointed in your answer.
Don’t try to craft a disingenuous argument that will get your client laughed out of court. Creativity is important, but not when it tends toward credulity.
Notice that within our example, I quickly concluded that our client had sufficient minimum contacts with the state to warrant the exercise of personal jurisdiction over him.
What if, however, our client had never been to California before and was actually only on the freeway at the time of the accident because he had been on an airplane to Hawaii that had to emergency land in San Diego, and he was simply rushing to LAX to catch the next available flight to Maui?
Would that be sufficient “minimum contacts” to warrant the exercise of personal jurisdiction? Maybe, maybe not.
The point is, if I started writing my legal brief without conducting a thorough interview with the client, I may have missed a pivotal fact that could change the outcome of the case.
As a young professional, you may not have direct access to the client. If that is the case, begin your research into the underlying issue and then go to the assigning attorney with a list of questions derived from your reading.
Explain that you need more information about the facts in order to perform a thorough analysis.
A word of caution, however: Don’t run to the assigning attorney every time you come up with a question.
Do your research and then schedule a time to address all of your issues at once. Trust me, they’ll thank you for being efficient with their time.
You may also note that my analysis relied on a case from 1945. And, while sure … International Shoe is the bellwether for personal jurisdictional analyses, you better believe your bosses will want you to ensure that any sources you use are still current and prevailing authority on the matter.
Don’t ever hand in a brief unless you’ve gone down the most exhaustive Shepard’s trail available.
Finally, any time you prepare a legal brief, be sure that you understand the issues, facts, and law to a point where you can have an intelligent discussion with your colleagues and clients about the subject matter.
There’s nothing more embarrassing than handing in a confidently written legal brief only to prove that you didn’t absorb any of the underlying information.
If I sound like I’m trying to scare you, maybe I am. The work you do on internal legal briefs may have grave consequences for your client’s case. Take the work seriously, ask the right questions, and use legal brief writing as an opportunity to refine the keen legal skills you’ll need throughout your career.
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