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.