Balancing Law and Advocacy in Your Legal Briefs

Sometimes the law works with you. Other times, your client’s interests require a little more creativity. No matter what practice area you specialize in, your trial briefs and motions for summary disposition need to be both useful and compelling to your judge to win your case. So how do you balance law and advocacy in your legal briefs?

I am a practicing lawyer and I ghostwrite briefs and motions for a number of other firms. You could say I’ve read a few trial briefs and motions for summary disposition in my time. They’ve ranged from drab recitations on the law to zealous pounding of the table with little more. Neither would be very persuasive or useful to a judge. The challenge for any litigator is to strike the right balance of law and advocacy to help judges see things from your clients’ point of view.

Frame the Issue

All too often, writers of legal briefs skip the most important part: the Introduction. We learned this in law school. We were taught to write the Questions Presented parts of our appellate briefs carefully to help frame the issue in a way that the judges can easily say yes.

But all too often, when it comes to trial-court briefing, we skip the introduction entirely and dive straight in to the Statement of Facts. That’s a mistake. Without an introduction that frames the issue, your judge won’t know what facts to pay attention to, or how to interpret the narrative you are laying out.

Give Your Judge the Law

One trial brief I had a chance to read recently was 100% advocacy. There was not a citation to be found in the whole document. The brief did not even reference the laws under which the judge would be deciding the case.

You can get away with that kind of sloppy briefing when you have an experienced judge and aren’t dealing with complicated legal nuances. But most of the time, your judge will be looking to you to provide the legal framework on which to hang his or her decision.

I get it, finding the legal citations for things “every lawyer knows” can be time consuming and annoying. I often find myself turning off the clock when trying to track down these basic citations because I don’t want to charge my clients for “basic research”. But if you don’t do the work to look up those “basic” citations, your judge has to do it. If your case rises and falls on one of these legal tenants, you should save the judge the trouble and find it yourself.

Use Statutory Factors as a Framework for Advocacy

In many practice areas, judges are required to evaluate factors before coming to a decision. By laying your brief out using these factors as a framework, you help the judge articulate why your position is the best one. When a statute is explicit about evaluating each factor, such as in the Child Custody Act, you may even want to spend a paragraph (or more) explaining why each factor weighs in favor of your client. That way the judge can adopt your reasoning and won’t have to struggle to fit your facts into the structure required by law.

Don’t Get Bogged Down with String Citations

While it is important to give your judge the legal framework for your case, you also don’t want him or her to get bogged down in the law and miss your advocacy for your client. String citations can quickly cause your judge to stop reading and start skimming, and that can cause them to miss the important point you make just after quoting the law. Citations are important, but once you have demonstrated support for your position, move on. Don’t get bogged down proving just how right you are. Provide support, and then focus the majority of your brief on advocacy.

Help Judges Connect the Dots in Your Client’s Story

Another brief I read recently was missing one key fact that would have sealed the deal against my client. The argument hinged on an unreported spouse on a person’s auto insurance application. But the brief never said when the applicant got married. It simply said that they filled out an application and then it was later determined they were married.

It can be easy to gloss over those small details when you know the case inside and out. But many judges have to deal with hundreds of cases every week. Don’t force them to make assumptions. Connect the dots in your client’s story so it is easy for the judge to say yes to your version of the case.

Writing a high-quality legal brief is about balancing legal research and zealous advocacy. You need to bring the judge with you through your version of the facts and circumstances and lay out why a case should go your way. When you frame the question, and then lay out the law and the facts that support it, you make it easier for the judge to say yes.

Lisa Schmidt is a legal writer for Legal Linguist in Ferndale, Michigan. She ghostwrites legal pleadings for attorneys in Southeast Michigan. If you need help with your next trial brief, contact Legal Linguist today to schedule a meeting.

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