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.Continue reading
in Your Legal
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 third of a 4-part blog series, we’ll discuss the importance of a clear, targeted argument.
The Argument is the heart of any legal brief. But if it is not handled carefully, it can either bury your judge with unnecessary details, or leave her without the legal basis to say yes to your request. The key is finding the balance.
Set the Stage with the Standard of Review
The first section in any brief should lay out the standard of review. Writing this first reminds lawyers that every request of the court must be based on a law and requested according to a court rule. For judges, the standard of review helps frame the legal argument. It also helps them set the bar at the appropriate height (preponderance of the evidence or clear and convincing evidence) and keep burdens of proof in mind.
How robust your Standard of Review should be depends on the legal argument you are making. If you are laying out the initial motion, your standard of review may be quite short and to the point. You don’t need to belabor the obvious. Set the stage and move on.
If you are responding to a motion and your primary argument is that the moving party has not met their burden of proof, then by all means beef it up. Give yourself the legal basis to challenge their allegations and show how their reasoning falls short.
Use Subheadings to Guide Your Argument
Legal brief can be a little like blogs, sometimes. In both cases, you write the content hoping your reader will take in and digest every word. But you are also aware that busy people — or judges — sometimes skim, looking for a section that addresses a particular need or question.
Just like in blogging, you can use headings in your legal brief as signposts, drawing your reader’s attention to the issues of the brief. Summarize each legal point as a heading. For example, a personal injury lawyer may create a heading:
“A question of fact exists regarding who caused the accident, preventing summary disposition under MCR 2.116(C)(10).”
This tells your judge what your core argument is, makes it easy for her to scan for the particular argument she is looking for, and provides a good summary that you can use later when you go back and write your introduction.
Give Your Judge the Law
Most lawyers know that law is like a game. There are rules that must be followed. The closer your circumstances fit within the rules, the more likely the judge is to rule in your favor. But unlike baseball or soccer, law has so many rules that no judge can be expected to remember them all or know precisely how they all fit together. That’s where your legal brief comes in.
Surprisingly, in some practice areas there are lawyers who believe their briefs don’t need to actually state the law. In my work as a family lawyer, I once received a trial brief that had no law in it at all. We were anticipating a complicated trial with issues of fault, property division, custody and parenting time issues, but the opposing attorney apparently felt that the legal aspects were so straightforward they didn’t need to cite the law.
Even if the broad strokes of the law are obvious to the attorneys and judge involved (i.e. Michigan custody is determined by the 12 Best Interest Factors), your specific facts may make certain parts of the law more or less relevant. You may need to delve into interpretation of the law to make your point. If so, you will need to lay out the law so your judge doesn’t have to strain to remember its wording. If you don’t, you’re leaving that work to your judge and her staff attorney (if she has one), and that may not work out in your favor.
Make and Support Your Argument with Citations
The Argument is what many lawyers live for. They are zealous advocates on their clients’ behalf. They want to pound the table and make it clear they are in the right. But those theatrics are better saved for the courtroom and oral arguments. If your legal brief is nothing but bare argument, you will make it easier for the judge to say no.
Instead, support your argument with case law and citations. Take the time to dig up a case or two that went your way. Yes, it can take some time. But it will also show the judge she is not blazing a new trail and that there is less of a chance she will be overturned on appeal.
Reference back to your statement of facts and exhibits, using those pinpoint citations we all hated to learn in law school. Explain to your judge why each fact is important, and how it fits into the scope of your argument. Lead your judge through a reasoned explanation of why she should find in your favor. Don’t just pound the table, set it. By providing case law and exhibits to support your argument you give the judge the support she needs to say yes to your motion.
Writing the argument section of your legal brief shouldn’t be about grandstanding. Instead, it should be a calm, rational guide through the law and the legal issues as they relate to your case. By taking the time and doing the research to build in statutes and case law, you strengthen your brief and make it more likely you’ll bring home a win.
Lisa Schmidt is a writer for Legal Linguist in Ferndale, Michigan. She writes briefs and memoranda for local law firms. If you need help meeting your briefing deadlines, contact Legal Linguist today to schedule a meeting.
Telling a Story
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 second of a 4-part blog series, we’ll discuss the importance of telling your story with the Statement of Facts.Continue reading
Why You Should
to a Legal Brief
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 first of a 4-part blog series, we’ll discuss the importance of a strong introduction.
Don’t Skip the Intro!
Let’s start with legal writing 101. Every legal brief should have an introduction. In law school we wrote appellate briefs that laid out the questions presented. We learned the importance of framing the issue in a way that makes it easy for the judge to say yes.
Just because trial court rules don’t require a “Questions Presented” section doesn’t mean you should dive right into your brief. Don’t skip the intro! This is your chance to set yourself and your brief up for success, so don’t waste it.
Let the Introduction Frame Your Brief
Your introduction shouldn’t be long. After all, you only have so much space to get everything in. You don’t need to get bogged down in the legal basis or procedural history. Your introduction should be a brief framing of the legal issues you plan to discuss, not a rambling discussion of the intricacies of the case.
On the appellate level, legal research and writing professors encourage you to state each question in 25 words or less. It should include the law and the most important facts. And it should be worded in a way that makes the judge want to answer yes.
You can use the same guideposts for a legal brief at the trial level. Let your introduction:
- Lay out which statute you will be applying (i.e. “Summary disposition is inappropriate under the MCR 2.116(C)(10).”)
- Explain what legal theories will be involved (i.e. “Defendant is equitably estopped from asserting his defense”)
- Give a very brief statement of the facts that will make the judge want to say yes (i.e. “Plaintiff knew she the statements on the affidavit were false when she signed it.”)
Use a separate paragraph for each legal issue you intend to present in the body of your brief. You may want to number them so the judge can quickly scan for them as headings further in.
Leave Equivocation and Nuance for Later
In many cases, the legal issues aren’t crystal clear. Maybe you are working in an area of the law without significant support from the Court of Appeals. In these cases you may be making in up and pulling from other jurisdictions to make your case. You don’t need to tell the judge that in the introduction. State your preferred interpretation as true now. Leave the explanation for how you got there for later.
It is also possible that the facts in your case aren’t the best. It happens to everyone eventually. You don’t need to draw attention to the things working against you in your introduction. State your strongest facts for each legal argument, and leave the equivocation for the Statement of Facts where you have more time to develop the story.
Use Alternative Arguments
The Introduction is a great place to lay out each of the alternative arguments you plan to use in the body of your brief. This way the judge will see “The motion should be granted because X. Even if not X, the motion should still be granted for Y.” This will address those weaknesses you’re trying to hide right off the bat, because the judge will know you have another theory that might address the holes in your argument.
Write (or Rewrite) Your Introduction Last
When you sit down to write your legal brief you may not have all the facts or law at your fingertips. As you work through your writing, your argument may change slightly (or even entirely!). You don’t want the judge to feel like the victim of a bait-and-switch. So wait until you have everything in place. Then go back and summarize what you wrote in your argument in a nice, tightly-worded introduction.
If you are delegating your research to staff in your firm, you still will want to review the introduction after everything else is complete. Make certain the task you assigned was the task that got completed, and that the research didn’t take another turn to get to the same conclusion. If it did, rewrite your introduction to reflect the final version and keep everything moving in the same direction.
The Introduction is one of the top 4 parts of your legal brief. Even though it is short, you still need to give it the attention it deserves. A well-written introduction section can give your judge an understanding of your argument going in. That will keep you from scrambling to explain yourself during oral argument and make you look better to your client.
Lisa Schmidt is a writer for Legal Linguist in Ferndale, Michigan. She writes legal briefs, motions, and memoranda for local attorneys. If you need help with an important legal brief, contact Legal Linguist today to schedule a meeting.
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We all remember our law school days, spending hours reading unpublished cases in the law library trying to find that one case that mirrored our professor’s fact pattern. He (or she) had to get it from somewhere, right? Many of us still use that practice today, relying on unpublished opinions when they are closer to our facts that the published case law. But a recent, ironically unpublished, case from the Michigan Court of Appeals could change all that.
The case is Duck Lake Riparian Owners Association v. Fruitland Township. In the midst of a discussion of everyone’s favorite topic, Res Judicata and Collateral Estoppel (note the sarcasm), the court dropped this bomb:
Plaintiff relies extensively on an unpublished case from this Court. Unpublished cases are not binding. MCR 7.215(C)(1). Furthermore, this Court disfavors reliance on unpublished opinions even as persuasive precedent and strongly discourages the bench and bar from relying on them in any way. Id. at *4
In any way? With one swift stroke of the pen, this Court of Appeals panel has eliminated a huge part of the litigator’s arsenal. It undercuts the careful work of its fellow judges who write carefully crafted unpublished opinions in order to be persuasive on the trial courts below. And it leaves some lawyers in the lurch where there is little published case law with which to prove their arguments.
The real logistical irony of this statement is that it is made in the middle of an unpublished opinion. Thus if attorneys were to take the court’s advice and not rely on unpublished opinions in any way, they would have to simultaneously not rely on that very advice. The logical paradox is dizzying.
But there is a nugget of truth to be taken from the court’s paradoxical opinion. We need to remember that we are not in law school anymore and that our clients’ cases do not come out of an obscure unpublished legal decision. Whenever possible, attorneys should rely on published opinions and statutes. Unpublished opinions should be the icing on the cake, not the main course.
If you need help with legal writing or overflow drafting, contact ghostwriter Lisa Schmidt for assistance.