Most law students need to draft appellate briefs as part of their moot court in law school and for other programs such as clinics. Knowing the basics of an appellate brief and learning how to draft one, helps enormously to focus one's mind on the practice of law and learn how to sort between what is relevant and what is irrelevant. This article is about how to write a brief that is both persuasive and logical.
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Creating an appellate brief for the first time
When you sit down for the first time to write an appellate brief, it is normal to feel lost. For the brief to be persuasive, the points of fact and law need to be credible. Next, the facts need to be accurate. Then the writing needs to be easily understood, and last of all, the sequence of presenting the facts should be one that supports your arguments, and not simply the chronology of events. If data and citations are accurate and logical, the judge will be more willing to side with your position. Credibility is the key, and establishing credibility requires thorough research and proper presentation.
Remember that writing a brief is not a linear process. When you write a brief, you do not need to order your paragraphs strictly according to the chronology of events. However, you should write paragraphs according to the sequence in which you need facts to be established and arguments to be presented.
Don't lose track of your objectives during legal research
When you start working on a draft, additional questions of facts and law shall arise, and each issue needs to be researched thoroughly. While drafting first briefs, it is easy to get enchanted by questions of law and drift off into research that is of little relevance to your work at hand. So, you must be careful to confine your primary research to essentials.
The best lawyers say that you actually start writing a brief only when you have finished writing it. This is invaluable advice because the study of law has a way of dragging you into the depths where you lose track of time, and fail to produce pleadings that meet the filing deadlines. . It is always better to craft a article, as if you were going to submit it to a law review journal for publication. Once the article is completed, you can start on creating your brief. This way, you would find it easier to remain focused on completing the task.
Identify the issues, and prioritize their presentation
It is not only important to properly identify the issues and questions of law, but for an appellant it is extremely important to identify those issues which are backed by precedents and statutes and easy to establish. Courts require proof, and any error of the trial judge you try to point out should not be hypothetical but should be substantiated by records. When writing an appellate brief, fully focus on the strongest arguments for reversal, and present these arguments with greater focus than other minor issues.
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If you are responding to an appeal, then you should respond specifically to each issue that has been raised by the other side.
Identify the standards of review for each important issue
In appellate cases, while the issues lay outside the Judge's purview, the standards of review define how the game is going to be played. You need to identify the proper standards of review for each issue raised in the brief and cite supportive precedent and seminal cases. You also need to understand the implications of each case that is cited, and how it can be used to support or distinguish arguments.
Creating the Table of Contents
The Table of Contents (“TOC”) is your lead mariner to take you sailing through uncharted waters. Prepare the TOC carefully, and use it to define how your arguments and points fit together. Facts must always be presented in the sequence of their occurrence, but arguments are presented according to the needs required by the issues at hand.
Do not generalize
Generalizations, universal categorizations, and the use of assumptions are to be avoided as much as possible. Write the brief for the judge who will focus on the law not emotional appeals.
Last, but not least, revise, edit, and proofread multiple times before submitting the finished product.
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