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How to Write a Brief

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A brief is a formal, written argument, usually presented to an appellate court, for the purpose of convincing the justices hearing the case to rule in favor of the side on whose behalf it is presented. The brief should discuss each issue under contention, persuasively set forth the law applicable to the facts of the case, and point out any flaws in the opponent's position. Because the basis of every decision is the analysis of the legal points set forth by each side in the briefs presented to the court, it is very helpful to be familiar with how briefs are constructed and what they contain.

Most law schools have an activity called Moot Court in which first year students are encouraged to participate. Moot Court is a make-believe appellate court. It is a good experience and gets you involved in legal research fairly rapidly. Usually, you are given a reasonable period of time to do your preparation. But start as soon as possible. It takes a lot of effort, and if you put it off, you will do a poor job.

A hypothetical statement of facts containing one or more novel legal issues not yet decided by real courts is presented to the participating students. Working from that perspective, they have to prepare and submit briefs, and then argue the case before a simulated judicial tribunal. (In actual practice, you get a reporter's transcript of the trial and have to dig out the facts yourself.) The same principles apply to both Moot Court and actual briefs.

Although only a small percentage of all cases tried are actually appealed, cases won at trial are occasionally lost before a reviewing court. As you read the cases in your casebook, watch for these instances and see if you could have foreseen the possibility of error if you had tried the case in the court below.

P's and A's is lawyer jargon for points and authorities. They are like little briefs, and are customarily presented to trial judges to cover principles applicable to specific legal questions which may arise during the course of the litigation.

Most lawyers in private practice get very little chance to go into the appellate courts, and many are apprehensive at the idea of writing a brief. Many go for years without doing so. Thus do everything you can while you are a student to gain brief-writing experience. It will pay off in a number of ways. Most important, writing briefs expands your law-finding ability. As you do your research and think about various arguments you may wish to use, you begin to see that there are numerous ways to approach a problem.

You will discover that the indices to legal literature are only as helpful as the acumen of the persons who prepared them. Cases sometimes do not hold what head notes indicate. You may occasionally find that when you look up a topic in an index, it will refer you to some other word or phrase; then, when you look at the second place, you are referred back to the first. Other times, you think something is very elementary, but you just cannot find anything listed on the subject. After a short time, however, familiarity with the indices pays off in rapid progress in research. As you gain more experience and knowledge of the law, you will develop more ideas on where to look. Analogous legal doctrines will suggest them-selves, and frequently, persuasive new arguments will come to the fore.

Competency in legal research, besides expanding your ability to determine what current law is, will enable you to find faster, more effective answers to your clients' problems. And when you are pressed for time in a trial, you will be able to give the judge a quick applicable citation to tide you over until you have time to prepare P's and A's.

The physical style of brief writing has become fairly formalized. Practically all appellate courts have detailed rules as to size of pages, type specifications, arrangement of contents, number of copies, and so on. Check the rules for the jurisdiction you are in (in law school, it's the Moot Court Rules) to make sure the clerk will accept your papers when you are ready to file them. Incidentally, be very careful of time deadlines or you may find your appeal is dismissed.

Courts generally require printed briefs. Some will also accept good quality typed reproductions. There are specific rules as to what color the cover of each of the parties' briefs must be. This is to help the justices so they know what brief they will be reading when they pick it up.

Generally, brief formats are similar; but jurisdictional requirements vary. The brief starts out with a title page which gives the name of the appellate court; the name of the case; the title, such as "Appellant's Reply Brief; the name of the court where the action arose; and the name, address and telephone number of the lawyer filing the brief. After the title page comes the Table of Contents (sometimes called the Subject Index). As in any book, it is usually an index to the material by section headings. It is a good practice to copy the full text of the section headings into the Table of Contents so the reader will have an overview picture of your entire argument. If there is an intermediate court opinion, that usually comes next. Then comes a page stating the major issues to be covered in the brief. These are referred to as "Questions Presented." All briefs have one; some contain more. In writing the question, most brief writers try to get everything into one sentence. Sometimes this gets ridiculously long and cumbersome. Do not be afraid to split one question into two for clarity. Try to put something special into this section which will make the court want to read what you have to say. A brief is a selling document. Each word should be carefully chosen for its effect on the justices who you hope will buy your side of the argument.

In Richardson v. Ramirez this is what the questions section of the brief looked like:

Can a state constitutionally disenfranchise convicted felons who are otherwise qualified to vote?

a. Does the denial of voting rights for "participation in rebellion, or other crime" language of the United States Constitution, Amendment XIV, Section 2, override the "equal protection" clause of Amendment XIV, Section 1, insofar as a state's right to disenfranchise convicted felons is concerned?

b. May California deny the privileges of an elector to a person convicted of an infamous crime, embezzlement or misappropriation of public money, or exclude from suffrage persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes?

Here, Paragraph a is the attention getter, posing the interesting question whether, within the bounds of this great civil rights amendment, there is an unexpected possibility of exclusionary language which may limit the equal protection theme. The possibility of internal constitutional inconsistency may cause the justices to delve further into this case. Paragraph b is the relevant language of the California Constitution stated in question form.

The next section of the brief, Relevant Constitution and Statutes, should give the full text of all constitutional or statutory language which will be referred to in the Argument part. If this is unusually long, it might be beneficial to quote only the vital words and put the rest in the Appendix, provided the rules of your jurisdiction permit this.

"Statement of the Case" comes next. This is a summary of the procedural history of the case: what happened in the courts below to get the case before this appellate court. Some lawyers will mix facts into the Statement of the Case. This really irks the justices. They have to know how the case arose procedurally so they will know how to properly apply rules of law to the facts. Accordingly, the facts should be clearly set forth in a separate section.

The Statement of the Case is prepared from the clerk's transcript of the record: the photocopy of the papers on file in the trial court. Each sentence is carefully referenced to show the page where it may be found. The letters "C.T." indicate it comes from the clerk's transcript. A typical Statement of the Case in a civil matter might look something like this:

On June 27, 1989, appellant brought an action for damages for breach of contract against respondent in the Superior Court of Marlynn County. (C.T.I) On August 7, 1989, the trial court sustained respondent's demurrer without leave to amend. (C.T.54) Judgment for respondent entered December 6, 1989. (C.T.57) Appellant appeals from the Order Sustaining Demurrer without Leave to Amend. (C.T.59)

Let us look at this for a minute so you will understand what is going on. It will help you to get a clearer background of some of the cases in your casebooks. Assume for a minute that we are one of the justices reading Appellant's Opening Brief. From reading the summary of the procedural activities set out in the Statement of the Case, we have learned that A filed a lawsuit against B, alleging in the Complaint that the parties had entered into a contract, and that B broke the contract. A wants money damages. At this point, we have no idea of the facts. We do know, however, that B filed a Demurrer to the Complaint, a strictly procedural operation, in which B said in effect: "Assuming the facts alleged in the complaint are true, as a matter of law, the complaint fails to state a cause of action."

Because we are only in the Statement of the Case part of the brief so far, and have not yet read the papers in the file or the Statement of Facts, we do not know the grounds for demurrer. But we do have a pretty good idea of what kind of appeal this is: It will be based on some legal or procedural point, rather than an interpretation of facts. Maybe the plaintiff waited too long before filing the lawsuit, and the action was barred by the statute of limitations; or perhaps the alleged facts disclosed that there was no consideration for the contract as a matter of law. As a busy justice, we would go further into the brief rather than speculate.

When you write the next section of the brief, "Statement of Facts," it is extremely important that you be very accurate and limit your description only to those facts set forth in the record on appeal. In Moot Court work, the Statement of Facts will probably be all written out for you.

The information in the Statement of Facts in a real case comes from the reporter's transcript of the trial and the evidence introduced by the parties. If you are writing the Statement of Facts, try to use the exact language of the record as much as possible. If you summarize or paraphrase, stay as close to the original text as grammar will allow.

Remember that you are trying to give the reviewing court a quick picture of a trial that may actually have taken two or three weeks. If a number of witnesses testified to the same thing, you can encapsulate their testimony by using one entry with numerous page citations.

Write the Statement of Facts using a variation on the method you use to prepare for class. First, read the transcript over fast once or twice to get the feel of the case. Witnesses will often testify in an order different from the chronology of events. You will need to know the whole record before you can piece together a logical story.

Try for a reasonably short Statement of Facts. Be sure, however, that you put in enough information to support the legal arguments which follow in the brief. Give the court sufficient facts to permit it to apply the relevant legal issues and rules. To give you an idea of how presentations in briefs may influence justices' decisions, here are two hypothetical partial Statements of Facts in a homicide case, one from the defendant's Appellant's Opening Brief, the other from the prosecution's Respondent's Brief. The letters "R.T." refer to the pages of the Reporter's Transcript of the trial.

A good defense brief writer might look at the evidence this way:

On the afternoon of April 22, 1989, Peter Loring, appellant, was working at the checkout counter of the Lucky Boy Market on Wilson Avenue in Corning. (R.T. pp. 38, 624). Mary Torrent, whom he had known all through high school, was purchasing a whole lot of groceries. (R.T. pp. 42, 198, 630). She said she was putting on a surprise birthday party for Andy Goran.

From here on, R.T. citations will be omitted for clarity. Remember, however, they are necessary after each sentence throughout the briefs so that the justices can turn to the exact place in the record if they want to look more closely at the full testimony on any point.

Peter knew him since they were little kids. They had been good friends, but had drifted apart when Goran started using drugs and dropped out of school in his junior year at Corning High. Goran had become a black leather jacket and chains biker.

Peter took a drink once in a while, but he had seen what dope could do to a guy; how it had wrecked the lives of several of his former classmates. And when he served his tour in Vietnam, he saw a number of guys screw up because of drugs.

Peter and Mary talked for a minute or two--you know how it is at the checkout counter. She left with her groceries. Peter did not see her again until late that night.

After the store closed at 10:00 p.m., Peter and Frank Balba, one of the other checkers, stopped for a beer at the Old Mill Bar. They had two or three bottles apiece and shot some pool. Chuck Turner came in all excited. He had just seen Peter's best friend, Milo Pepper, killed in a fiery explosion when his car was hit by a guy driving on the wrong side of the road across Murphy's Bridge.

Tears came to Peter's eyes. He started drinking straight bourbons. After about an hour or so, Peter was pretty drunk. The bartender eighty-sixed him.

The next thing Peter remembered, he was standing at the table in Mary's living room. Goran was making fun of him because he was crying. When Goran said, "I never liked that Milo Pepper son of a bitch, anyway," Peter felt he wanted to kill him. He started throwing punches. He really wanted to kill him. Goran knocked him to the floor.

Peter left. The only thing he knew was that he wanted to kill Goran because of what he had said about poor Milo Pepper. All he remembers is that he had a knife in his hand. The details are very hazy. Some cop told him he could get a lawyer, that's all.

Here is how the prosecution might present its view of the same evidence:

On April 22, 1989, Mary Torrent gave a surprise birthday party for Andy Goran. Twenty-three guests were invited in addition to Andy. During the evening, appellant, an uninvited person, showed up. He was drunk when he arrived. He kept drinking heavily.

About 1:30 a.m. Andy asked him to leave because he was disturbing the other guests. There was a fist fight between them. Appellant left.

A half hour later appellant appeared at the front door with a long knife. He said, "If you come past this door, you bastard, I'll stick this knife in you."

Andy said nothing and started for the door. Pete Jones and Willie Smith tried to hold him back. Andy brushed them aside and went outside. Everybody followed and made a ring around them. Andy was unarmed.

Appellant said, "I told you I'd stick this knife in you." Andy said, "Go ahead." Appellant lifted the knife. Four of the onlookers rushed to stop him. Appellant stuck the knife into Andy's chest very deeply. The other people pulled him away. Andy fell to the ground.

An ambulance was called. Andy was dead when it arrived.

The police came. They took statements from everybody. Appellant was given his Miranda warning. He said he wanted a lawyer, so there was no further interrogation. He was taken to the county jail.

This example utilizes a subtle prosecution technique which you should be aware of. You will note that nowhere does the appellant's name appear. Yet, at every opportunity, the names of the other witnesses are given. The victim is referred to only once by his full name. After that, he's always called "Andy." Everything has been carefully written to portray the appellant as a nameless, faceless individual. The victim has been personified as much as possible. The idea is to try to get some psychological edge when the reviewing court reads the cold record.

There are two sides to every story, and given the same transcript, there are two ways to tell it. But when you do, do not go outside the record when you write your Statement of Facts. Remember, on appeal the reviewing court is looking for any substantial evidence in that record which will uphold the verdict rendered by the trier of fact. In choosing your facts, do not omit uncontroverted facts which are against you in the hope that the court will not pick them up. And do not select only favorable material so that you distort the record. Always present the facts truthfully and carefully in the best light possible. If you are stuck with a bad fact, mention it if it is important, and continue on.

Just as you should not put any facts into the Statement of the Case, you should not put any arguments into the Statement of Facts. That is what the "Argument" section of the brief is for. There is where you discuss all the issues in the case. The idea is to apply the law to the facts in a persuasive way so that the reviewing court will hand down a decision in your favor.

The argument has to raise legal issues which, from the appellant's point of view, will cause the appellate court to reverse the judgment of the trial court, and from the respondent's point of view, will cause the court to sustain the judgment. In order to find these issues, you have to go through the record looking for possible error. In many jurisdictions, the error must have been pointed out to the trial court by trial counsel, or else it cannot be raised on appeal. Because of constitutional questions relating to due process, equal protection, and right to counsel, however, courts in criminal appeals are more lenient in this regard than with civil litigants.

The question of lack of jurisdiction can generally be raised at any time because, if the trial court had no jurisdiction, it should never have proceeded to judgment in the first instance.

Initially, when looking for issues to develop in the brief, you should go through the clerk's transcript carefully to see if anything shows up in the papers filed in the case which might be of help. Every once in a while an astute lawyer will get a reversal because some elementary requirement was overlooked either before or during trial. When you wrote your Statement of the Case, you probably went through the clerk's transcript a bit superficially, so it is worth this second, more intensive look. Because of the requirement that legal questions must be raised in the trial court in order to be considered on appeal, you may find reported discussions and P's and A's in the record which will more or less frame the scope of the issues you will have to cope with.

If you tried the case, rereading the record will give you a chance to see everything in perspective for the first time. During the trial, you probably were too involved to make impartial observations. If you did not try the case, you can probably be even more objective in evaluating which points might be convincing to the reviewing court.

Before writing your Argument, first outline it so it will read well. Go for the aorta. Put your strongest and most dynamic material right up at the front. Get the justices' attention before you have a chance to lose it. Stick the boring and minor stuff at the end so they can read it after they are almost convinced. Cover everything in whatever depth is necessary, but remember, you are writing a brief. Go back to the appellate court clerk's office and look over the briefs that won cases. You will learn a great deal about style, preparation, and argument.

Try to write convincingly. Use legal language, but be careful that you do not get pedantic. Do not drift into colloquialisms. Avoid using contractions; spell everything out. Remember, this is a formal document.

Customarily, the points raised in the Argument are broken down into separate sections, each set off by number, more or less in outline form. Frequently, there are also subsections. Each section and subsection is usually given a title. Put these into the Table of Contents verbatim to give readers a quick look at the scope of your position and to set the proper stage for their perusal. Make your titles as positive as possible. Keep thinking that you have something to sell. Remember that even though the salesperson in the shop shows the customer a lot of merchandise, there is no profit unless the goods move out of the store.

The Argument is followed by the Conclusion. It is a short summary of the major points developed in the brief, plus a clear statement in legal language describing the relief which you are requesting the court to give-for instance, "The Judgment of the Superior Court should be affirmed"; or "The Order Denying Probation should be overruled and the matter referred back to the Superior Court for resentencing."

Any supplementary material should be put in the Appendix. Each item should be separately numbered or lettered as an exhibit to the brief, and should be so noted in the appropriate place in the main text.

The most important thing in brief writing is intensive research and logical argument. It is your work, preparation, and organization which will win or lose the case. While knowledge of the law and insight into its applications are necessarily important, the manner in which your case is presented and argued to a reviewing court can mean the winning or losing on appeal.

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