- Title Page: The title of the case shows who is opposing whom. The name of the person who initiated legal action in that particular court will always appear first.
- Table of Contents: Because the Argument is the most complex part of the brief, the headings and subheadings used within the argument section should also be listed in the contents with the corresponding page number.
- Table of Authorities: This list not only verifies the sources used by the attorney, but is useful for the Court and for other attorneys to quickly determine what cases, statutes or other materials are being cited, and to easily locate these references in the original research materials used in preparing the case.
- Statement of the Issues: This is a very short introductory statement of the legal issues or points of law involved in the case. It tells the Justices precisely what legal issues the attorney team wants the Court to decide. These statements should be phrased to help one argue ’for’ a particular conclusion rather than simply against the other side.
NOTE: When noting issues, it may help to phrase them in terms of questions that can be answered with a precise ‘yes’ or ‘no’.
There is no substitute for taking the time to carefully frame the questions. The questions must actually incorporate the key provisions of the law in terms capable of being given precise answers. It may also help to label the issues, for example, ‘procedural issues,’ ‘substantive issues,’ ‘evidentiary matters’ and so on. - Statement of the Facts: The Statement of the Facts is a retelling of the facts from your client’s point of view.
Lawyers explain the situation in a way that helps their client. This is a very important part of the brief that sets the stage for the argument, and should be presented both to help the court understand the case and show your client in the best possible light. But, remember not to assume facts not given, and do not distort, change, or add to the facts.
The Statement of Facts is for telling the court what the case is about. The Statement of Facts should never be argumentative in tone. The argument portion of the brief is for contention about the significance of those facts. Nothing impairs a brief writer’s credibility more than an emotional, sarcastic, plaintive, or visibly one-sided Statement of Facts.
In appellant briefs, you should be especially careful how you refer to the court or administrative tribunal below. If you are the appellant or the petitioner, you are, of course, asking the appellate court to reverse the lower court’s decision and the appellate court knows that already. It knows you disagree with the outcome thus far. It will reverse in an appropriate case. But its initial inclination, almost always, will be sympathetic to the fellow judge who had to sit through the trial or to the tribunal that had to sift through the entire record now being selectively quoted on appeal.
Criticism of the lower tribunal therefore should be stated carefully and objectively.
Remember:
The statements of fact section of a good student brief will include the following elements:
- A one-sentence description of the nature of the case, to serve as an introduction.
- A statement of the relevant law, with quotation marks or underlining to draw attention to the key words or phrases that are in dispute.
- A summary of the complaint (in a civil case) or the indictment (in a criminal case) plus relevant evidence and arguments presented in court to explain who did what to whom and why the case was thought to involve illegal conduct.
- A summary of actions taken by the lower courts, for example: defendant convicted; conviction upheld by appellate court
- Argument: This is the core of the brief. Students may find the argument to be somewhat like writing a persuasive essay with lots of research references. It presents support for the issues presented earlier. Solid research is used to back every part of the argument. Arguments must be well-organized and convincing; lawyers will win or lose their case based on the quality and substance of what is said.
Each point the team wants the court to consider in deciding the case must be described, and the reasons explained with appropriate references to research materials used, and text citations inserted as frequently as needed. Make sure to follow the citation format applicable in your jurisdiction.
Structurally, each part of the argument ought to be first directed at supporting the various issues of one's own case, then also opposing the contentions anticipated to be brought up by the opposing party.
Stylistically, the argument ought to be written in forceful, active and positive language.
NOTE: In appellant courts ‘staying within the rules’ is very important. The rules are the first thing you must consider before writing your brief. Familiarise yourself with the rules of the court in your jurisdiction. Follow to the letter matters such as, length, formatting and binding of the brief.
When a court does have rules governing the format of a brief, obey them to the letter.
Remember:
There are two primary determinants of the quality of the argument section of a brief:
(1) the quality of the arguments available and
(2) the analytical and writing skills of the lawyers involved.
Editing
Ideally, editing is something that should be done on paper, not on a computer. Print the brief out and read it (preferably aloud), with a sharp red pencil.
Guidelines
First focus on the organization, the flow of the brief as a whole. Have you developed your arguments first -- that is, demonstrated why you should win as opposed to what’s wrong with the other side’s argument.
Check out the following
- the paragraphs, themes, and thoughts must flow from one to next
- your thoughts must be in sequence and your transition clear
- your central point ought to emerge clearly and quickly
- your logic must be explicit and sound
- Whether you have considered and anticipated to the best of your ability the counter arguments or alternatives to your arguments and framed your arguments in the light of them
- your tone must be appropriate
- Check that your paragraphs are not too long. The general rule is one thought or theme to a single paragraph.
- Eliminate rhetoric, hyperbole, and overstatement. Avoid metaphors and hypotheticals. Be careful that any quotations are correct.
- Get rid of adjectives and adverbs. Get rid of legal jargon. Get rid of redundant words. Get rid of any overstatement. Do not overwrite. Use the simplest word, not the fanciest word. Get rid of tired clichés.
- Remember you are trying to persuade, not show how smart you are. Make it simple enough that a lay person would understand.
- Set the brief aside for a while. Then edit again. That way the writing will seem fresher in your mind and not as familiar. You will catch things you missed as you were reading the brief over before.