Eight Elements of a Winning Legal Brief

Does your brief to the Supreme Court (or any other court) kill your case because it lacks one of these 8 elements?

Element 1: A Plan.

You will avoid many problems in logic and structure if you outline your draft in advance. At least start with a sensible order for your points and keep related ideas together. You can change your outline later (and you probably will), but the outline will give you a quick view of whether your argument has merit. Think Aristotle: Do your premises lead to the conclusion you want for your client? If yes, do you have strong enough law and facts to support your premises? Where will your opponents objections fall, and how will you address them with minimum distraction?

Element 2: Energy and Preparation.

Justices and judges (who see hundreds of briefs each year) can tell the difference between a well-prepared brief and one where the lawyer has spent little time on it. Lawyers who don’t spend enough time to write well show that they are not really that devoted to their client’s cause, probably haven’t researched the law very well, and haven’t paid enough attention to the consequences of their arguments. The bottom line: judges cannot trust these lawyers, and and their clients will suffer.

Element 3: Beginning, Middle, and End.

Every brief has a beginning, middle, and end. The beginning should hook the reader and frame the issues in a way that, from the outset, shows that your client should win. The middle should detail the reasons your client should win, provide legal and factual support, analyze the law, and deal effectively with counterarguments. The end should clearly state the result you want for your client. If it doesn’t have all of these parts, your brief is incomplete.

Element 4: Story.

Every case has a story, and the story must present itself in the statement of facts. Even a seemingly dry contract case will usually have a story about trust and betrayal, or expectations and disappointment. Tell the story to show that justice lies in rendering a decision for your client; if you do, it is more likely that ambiguities in the law will bend in your client’s favor.

Element 5: Pacing and Rhythm.

It might seem like asking too much for a brief to sound like music to the ears, but the best briefs do. In them, paragraph and sentence lengths are varied. Words and phrases are crisp. Punctuation is used deftly to emphasize the most important elements and provide pauses in the right places. The best briefs have a cadence; they are a joy to read; and they move the reader toward the result you want.

Element 6: Deal with Counterarguments.

It is okay to be committed to your arguments, but don’t be blinded to weaknesses. If there are weaknesses (or apparent weaknesses) in your case, don’t assume your reader won’t think of them. Deal with them directly without highlighting them at length. Many lawyers take the advice to deal with counterarguments too far, and allow their opponents arguments to drown their own briefs. Often the best strategy is to raise the potential objection and quickly supply the answer. For every substantial objection, look to provide at least three reasons that the decision should come out in your client’s favor.

Element 7: Visual Style Matters.

First, make sure the typeface, margins, page numbers, spacing, and headings meet your court’s requirements. (For example, the U.S. Supreme Court requires a Century typeface, 12-point type, and 2-point or more leading between lines.) But aside from such requirements, make your brief easy on the eyes. Use a professional font, adequate white space, and easy to follow headings and subdivisions that won’t make your judges suffer. Refer to an appropriate manual on typography. Style matters.

Element 8: Ruthless Editing.

Weak arguments must be discarded because they taint your entire case. Unclear passages must be rewritten or deleted (or they will confuse your reader and lead them astray). Grammar, punctuation, and diction must be accurate (or you will annoy the judge to no end). Draft and redraft your brief; read and reread it; remember, once you file it, it is too late to fix it.

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