Types of Briefs to a Trial Court Briefs in support of a motion that will settle the case. E.g., Motions to dismiss Cases that are settled based on the law and not the facts Briefs in connection with discovery disputes. E.g., Motion to compel production of documents, etc. Brief in connection with an evidentiary or procedure dispute. E.g., Motion to exclude evidence from a case Briefs on substantive issues before or after trial; e.g., Motion for judgment notwithstanding the verdict Advanced Legal Analysis and Writing Class 15 Slide 1
Briefs in Bench Trials When there is no jury, the parties can write briefs after the evidence is submitted explaining why they should win the case, based on the facts and the law This is similar to closing arguments before a jury, although both may be held in a bench trial. These tend to be much more detailed in the facts than appellate briefs because the judge is acting as the trier of fact. When there is a jury or an appeal, the court is acting as a trier of law, not a trier of fact. Advanced Legal Analysis and Writing Class 15 Slide 2
Briefs to a Trial Court: Other Points Focus more on applicability of the rules as they exist, rather than policy. The Supreme Court, and to a lesser extent, the appellate courts, are more likely to take public policy into account. The trial courts are most likely to simply apply the law as they see it. Although you should focus on legal rules, framing the argument to show that fairness is on your side always helps as well. Advanced Legal Analysis and Writing Class 15 Slide 3
Briefs to a Trial Court: Other Points 2 Be as Brief as possible Cite only relevant facts If there are cases on point and cases analogous but off point, focus only on the cases on point Keep policy statements to one or two sentences If you have binding cases and nonbinding cases, focus only on the binding cases Tailor your argument to the judge or court Follow the court rules! If you have information about the personality or tendencies of the judge, that can and should impact your writing. Advanced Legal Analysis and Writing Class 15 Slide 4
Facts About Appeals In most cases, there is an automatic right to appeal one level. The federal and state Supreme Courts generally have discretion in terms of which cases to hear. Most appeals must be from a final judgment. In some cases, an appeal can be made while a case is still going on. When allowed, this is called an interlocutory appeal. Advanced Legal Analysis and Writing Class 15 Slide 5
Parties to an Appeal The party filing the appeal is the appellant. The other party (usually, the party that won in the lower court) is called the appellee or respondent. Case name: Sometimes, the name from the lower court (e.g., State v. Jones) will remain the case s name on appeal. Sometimes, however, the appellant is listed first and the respondent is listed second, regardless of whom was the plaintiff and defendant at the lower level. Advanced Legal Analysis and Writing Class 15 Slide 6
Tips for Writing Appellate Briefs 1 Focus on the errors of the lower court Every appeal must have grounds in the forms of errors or bad judgments of the lower court Beware of the harmless error rule. Therefore, always try to show how important the lower court s mistake was Keep in mind that appellate courts do not like to second guess lower courts in issues of fact. Courts know that the trial judge and jury are in the best position to make determinations of fact. Focus on errors in law, not on whether the appellate court might agree or disagree with the jury s verdict Advanced Legal Analysis and Writing Class 15 Slide 7
Tips for Writing Appellate Briefs 2 Base your argument on the appropriate standard or review. If the standard is abuse of discretion, you must show that the judge was not merely incorrect, but abused his discretion If the review is de novo there s no need to complain that the lower court judge was incorrect or abusing his discretion Emphasize how a finding for your client furthers public policy Emphasize how a finding for your client will promote harmony and consistency in application of the law. Advanced Legal Analysis and Writing Class 15 Slide 8