Writing high quality legal briefs is a crucial part of any litigator’s trade. Whether you have support staff doing your research and typing, or are a solo attorney doing everything yourself, you need to know how to make your legal brief work for your client. In this final portion of a 4-part blog series, we’ll discuss the importance of supporting your argument with exhibits.
Stick the Landing.
Support your legal brief
Read More: Part 1 – The Introduction
Read More: Part 2 – The Statement of Facts
Read More: Part 3 – The Argument
What? Exhibits? What About the Conclusion?
If you’ve been following along with this blog series, I bet you thought I was going to say conclusion. After all, that’s actually in the brief. Exhibits just get tacked on, right?
It’s important for your legal brief to have a conclusion. It, like the Introduction, summarizes your argument. Then it tells the judge specifically what you would like her to do:
- Rule on a matter of law
- Impose temporary injunctive relief
- Resolve a complex issue your way
- Dismiss the case entirely
However, the conclusion does not generally make or break your legal brief the way other sections do. It is far more important to be sure your exhibits are in order.
Include Factual Exhibits — It’s in the Court Rule
If you are defending against a Motion for Summary Disposition, the Michigan Court Rules specifically tell you that you need to include exhibits to support your argument. MCR 2.116(C)(4) – (6) says:
(4) A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.
(5) The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10). Only the pleadings may be considered when the motion is based on subrule (C)(8) or (9).
(6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.
In other words, show your work. Make sure you have the affidavits, depositions, admissions, and documents to back up your claims.
Just because you’re the one requesting the motion doesn’t mean you get a pass on this one either. Remember, the Michigan courts say it is up to you to establish that there is no question of material fact. In other words, the jury can’t help but find in your favor. How are you going to do that without exhibits?
Deciding What to Attach as an Exhibit
One of the biggest questions for your legal brief is which exhibits you need, and which are unnecessary or redundant. The answer to these questions depends on your judge, your particular argument, and your style, but here are a few pointers:
- Unless a local court says otherwise, don’t attach pleadings in the same case.
- Do attach pleadings from other cases, even in the same court
- Choose the single best piece of evidence to support your point (unless your argument is based on the quantity of evidence in favor of your point)
- Use third party documentation rather than self-serving affidavits when you can
- Remember to redact personal identification numbers or other confidential information from your exhibits
Help Your Judge Sort Through Exhibits with Spot Citations
When you are defending a complicated Motion for Summary Disposition or preparing a lengthy trial brief, there may be a lot of lengthy exhibits involved. Hours-long depositions or months worth of bank statements could leave your judge cross-eyed. Don’t make her do all that heavy lifting. Learn to make smart use of spot citations to guide her to the right place within your proof.
Don’t Make Your Judge Search for Context with Excerpted Exhibits
When you are putting together a lengthy motion for summary disposition, the filing can get large quickly. You may be tempted to shave some pages by attaching excerpted exhibits. But this can backfire on you. Your judge (or the other side) may wonder what you are cutting out, or even what you are trying to hide. That may leave your judge searching for context and hurt your credibility. There are other ways to save paper (such as compressed deposition formatting). Don’t cut corners by cutting pages.
Attaching Legal Precedent as Exhibits
Most of your exhibits will be to support your Statement of Facts. But sometimes, your Argument can add to your attachments. If you reference unpublished cases in your own jurisdiction, or if you are relying on persuasive precedent from other states, don’t assume your judge has access to those records. Be sure to attach those cases as exhibits to your brief and note that they are attached in your citation. That way your judge knows she doesn’t have to look too far to understand your support.
Your exhibits show that you mean what you say and it’s not just you, or your client’s, word against the other side. By citing to and attaching documents, depositions, and case law when necessary, you can bolster your legal brief and make it easy for the judge to rule in your favor.
Lisa Schmidt is a writer for Legal Linguist in Ferndale, Michigan. She writes briefs and memoranda for local law firms. If you need help handling your writing overflow, contact Legal Linguist today to schedule a meeting.