How to write the hard-hitting brief that judges want

A brief is one of the most critical case-winning devices. It sets the tone for your case and establishes your winning strategy from the outset. Furthermore, when it is reviewed by judges, it’s one of the few times they give your argument their undivided attention – so make it count! A well-written, well-researched brief will convince judges to take you seriously and predispose them to support your argument. In contrast, submitting a subpar brief gives the opposition an advantage. This risks putting your client’s rights, freedom, and money at stake. Simply “good enough” when it comes to brief writing can carry definitive consequences.

We know that judges are constantly pressured for time, so it’s imperative that your brief is concise and your argument is clear. Ensure your brief is easy to read and understand, while keeping in mind your writing style, tone, and grammar.

This is your opportunity to put your best foot forward and optimally position your argument. Follow the guidance below to create a brief that’s sure to win over judges!

Start by creating your plan of attack

Immediately find out what success looks like to clients so you give them what they want most. Before the end of your first meeting, make sure you know what they define as a win and precisely what they hope to get out of your relationship.

You don’t want to move forward without this clarity or you’re setting yourself and your client up for disappointment. For instance, does your client want to battle it out to the bitter end in the hopes of a record award, or are they simply looking for a quick resolution to an injustice?  Do they want to defend their honor at all costs, or are they more interested in a quick and quiet settlement? In reality, they may not know.  But an effective lawyer can help them determine where their interests really lie.  Draw on your experience to help the client understand the strengths and weaknesses of the case.  If possible, show them examples of outcomes in comparable cases and have a frank discussion of the amount of work that goes into such a result.  In short, ask them what outcome they’re hoping for and develop your case strategy accordingly.

Don’t just dive right into your legal research. Planning is important. Making a plan ahead of time will make you more efficient and keep you on track throughout the entire brief-writing process.

When mapping out your plan, it is best to start by outlining all the relevant facts and identifying the key legal issues in the case. Once that information is gathered, you can then prioritize and outline the legal issues that are going to require research. When thinking through what issues you will need to research, it helps to create a decision tree of items and questions. This helps narrow the scope of your research and identifies the key questions that you’ll have to answer.

In addition, the planning process is a great time to see whether you can leverage your existing knowledge base. Why start from scratch if you don’t have to? See whether your firm has an existing brief that you can leverage for language, citations, or arguments to help jump-start your research. There’s no need to re-create the wheel if you don’t have to.

Your time is precious – so keep in mind that planning doesn’t have to be a cumbersome step in the process. However, it is critical that you map out your plan of attack to save valuable time in the long run.

Thorough research is key; make the most of it

Thorough research is critical to delivering your best work, but it doesn’t have to cost you valuable time. There are plenty of tools to help reduce the time you spend conducting research. However, make sure you’re not cutting corners. The consequences can be disastrous. Citing bad, outdated law or the wrong version of the law are all detrimental errors that can cause immediate damage to your case and clients.

You should start your research by identifying relevant cases and statutes that answer the questions outlined in your legal research plan. To do this, it is best to reference secondary sources at the beginning of the process. This will allow you to quickly get a high-level overview of the subject and understand the area of law. Secondary sources will also lead you to the most relevant primary law so you know what to prioritize as you continue your research.

After you have explored secondary sources, you can then dig into researching statutes and case law – keeping in mind to only cite the most relevant authorities. At this stage, many attorneys will question whether they have found everything relevant to their case, and whether they are making the strongest argument possible.

When is enough truly enough? Well, it’s helpful to refer to your research plan to make sure you are still on track. It can also be helpful to take a quick scan of your firm’s archives to find briefs from similar matters. By doing this, you may identify relevant authority and arguments that you may have previously overlooked, or even give you a head start when it comes to the actual writing of your brief.

Free legal research can come with a significant price

While there is an abundance of free legal research options, the cost of relying on these resources can be significant. Not only could you risk missing critical information, but the time you’ll spend scrolling through the data to find the authority that supports your argument can add hours to your process. And once you do, you’ll have to spend more time making sure:

• The statute hasn’t been amended, repealed, superseded, or held unconstitutional or preempted in whole or part
• That case law is still good law and hasn’t been reversed or overruled
• You continuously validate that your research is current through the end of your case, especially if the statute is often the subject of proposed litigation

To make the best argument possible for your client, you need to have an accurate and thorough understanding of the law. You don’t want to be in front of a judge citing law, only to discover that it has recently changed.

Don’t skip or rush your analysis

Making time to conduct legal analysis after your research will help you formulate your strongest argument. The key is to go beyond simply citing the cases you found in your research. In the legal analysis phase, you need to determine how you will:

• Explain how the law supports your argument
• Distinguish the facts from other cases that do not support your argument
• Discuss the implications of the legal issues at hand
• Distinguish the factual differences between cases by identifying similarities and differences
• Address the counterpoints of the opposing counsel; this is your chance to get ahead of the key elements of their argument

IMPORTANT NOTE: Do not skip or rush through this step. To allocate time appropriately, find solutions that make your research as efficient as possible. Saving valuable time with your research will allow you to do what you do best – formulate a strong legal strategy and argument. And, keep in mind that legal analysis is what clients are willing to pay you the most for, so don’t overlook its importance. By doing a good job at this, you can reinforce your value to the client and set them up to achieve the outcomes they desire.

Do your research justice with clear, organized writing

After thoroughly researching and analyzing your case, it’s time to bring your argument to life. It should be effortless for the judges to quickly grasp the key points you’re making and why they should support your position. That requires clear, succinct, and well-organized writing.

Before you start writing, take time to review how judges have ruled on similar issues. This will help you formulate what types of arguments have been the most persuasive.

Your brief should open with an introductory paragraph that clearly outlines the arguments to follow. Your strongest argument should be made first. To get your creative juices flowing and thoughts organized, consider:

• Summarizing your case aloud, as if you’re making the argument in front of the judge.
• Creating a list of questions related to the case that your brief will answer. Note all the key facts and issues. Jot them down as they occur without forcing yourself to place them in sequence. Make them easy to understand.
• Analyzing briefs from similar cases. Note what did or did not resonate with the judge so you can learn from successes and mistakes.

Once you’ve collected your thoughts, organize them with an outline from which you can build your brief. Consider the questions you want your brief to answer – try to keep it to three – and express them clearly and concisely. While you may have additional questions, these likely can be categorized under one of the three main themes. These key questions will be the conceptual foundation of your brief.

You also need to review the procedural requirements for your court to make sure you follow the appropriate format including page length, font type, and citation format required by the court.

Your brief should have a basic structure that includes these elements:

An introduction, or statement of the case, that articulates the question and issue, and the procedural history of the case. Introduce a theme that unites the issues and summarizes the story you’re going to tell. Draw the judge in with a clear first sentence that will compel him or her to keep reading.

A table of authorities (TOA) section that cites all the legal authority you used to complete the brief. Many judges will use a TOA to fact-check your work. Make sure yours is error free and complete. Nothing will frustrate a judge more than trying to locate an incorrect citation – and again, this is all about winning them over, so accuracy is key. New state-of-the-art software can seamlessly compile a TOA in a matter of minutes, compared to a process that used to take hours.

A statement of facts that outlines the key facts a court should use to make its decision. Be clear and use simple, yet persuasive, language. Use subheads. Establish the facts that are listed within the record as well as the procedural elements of the case. If the fact isn’t pertinent to the case, don’t bring it up. However, don’t avoid unfavorable facts – the judge will notice and you’ll lose credibility. Finally, avoid statements that outright tell the judge the conclusions they should come to.

An argument section with point headings. These headings summarize an argument in a single sentence. Follow that with details related to the argument. Pay special attention to these headings to make sure they are strong, clear, and persuasive. As a result, your brief will stand apart from the many others that are challenging to read and follow.1

A conclusion statement that briefly reiterates the key points of the brief and requests specific relief. To help you gather your thoughts for this section, you may want to again think aloud – summarizing your case as if you are in front of a judge.

Follow these tips to enhance the clarity of your brief and state your most persuasive case:

• Include more white space if it’s going to be reviewed online. This will make it easier to read on a screen.
• Avoid minutiae – keep dates out of briefs unless they’re absolutely necessary, don’t include information that is not absolutely relevant, and don’t cite anything that you don’t want the court to read.
• Use the active voice – instead of saying “The sidewalk was icy and caused Mrs. Jones to slip,” say “Mrs. Jones slipped on the icy sidewalk.”
• Be merciless in your editing and eliminate any weak points in your argument.
• If you have a long term in your document, such as “the Hesselgrave-Berman-Zietmeister (HBZ) Contract.” 2
  

Once you’re satisfied that you’ve created a brief that will impress the judges, don’t rest on your laurels – proofread it thoroughly and always double-check the law that you are citing. You don’t want to undermine your hard work with typos or bad, outdated law. Finally, make sure you take one last look to ensure you’re in compliance with court guidelines when it comes to design and formatting.

Embrace technology, don’t run from it

If writing a brief feels time-consuming and even overwhelming, know that you’re not alone. By taking advantage of legal research technology, such as Westlaw Edge, you can significantly reduce the time and effort it takes to develop a hard-hitting brief by:

• Linking and flagging citations. With KeyCite® on Westlaw®, you’ll know at a glance whether the law you cited is or isn’t valid. You’ll find the ruling’s history, and see why a higher court may have overturned a decision or gave it negative treatment. You’ll have the nuance you need to make your most persuasive argument.
• Taking citation analysis to the next level. KeyCite Overruling Risk uses artificial intelligence to warn you when points of law in a case may have been implicitly undermined by later rulings. You can now detect the risk of negative treatment to a case you’re citing, even when that case has no direct citations pointing to its invalidity.
• Alerting you immediately if a rule changes. With KeyCite Alert, you can rest easy knowing that the law you’re citing is valid. If precedent shifts and it receives a negative treatment or is overturned, you’ll be notified immediately. This is especially critical if a relevant statute is the subject of proposed legislation.
• Using state-of-the-art AI technology to strengthen your citations. With Quick Check, part of Westlaw Edge, you can take previously existing work product and validate the authority and quotations in just a few clicks. If there is a better and stronger authority, Quick Check will make recommendations. Quick Check gives you the confidence to know your legal document is ready to go by eliminating the risks of basing your argument on outdated laws, misquoting a case, or not using the strongest authority.
• Using Quick Check Judicial, court professionals and attorneys can upload multiple documents from a single matter. An easy-to-read report shows citations used by both parties and relevant authority neither party included.     
  
• Relying upon advanced search analytics. There’s no need to feel like you’re searching for a needle in a haystack. In one simple search, you can quickly see all existing caselaw, statutes, and secondary sources pertaining to a particular issue. Take the guesswork out and ensure that you’ve left no stone unturned.
• Analyzing similar cases. You can now utilize sophisticated litigation analytics to inform your brief strategy, and gain insight into the very sources a specific judge has cited to in similar cases.
• Reviewing codes as they existed at critical dates for your case. With Statutes Compare and Regulations Compare, you can now review how a statute or regulation has changed over the years without having to spend valuable time wading through legislative history materials. 
• Leveraging technology as your personal assistant. Tools are available to help you be more efficient through every step of the brief-writing process. Whether it’s electronically foldering and categorizing your research findings, providing templates for getting started, or seamlessly compiling a Table of Authorities with the click of a button, the time to embrace Westlaw in your work is officially here.

Go with Confidence

By following these steps, you’ll know that in the end you’ve completed a brief that is not only accurate, clear, and highly professional, but you’ve also taken the steps to put your most persuasive arguments in front of your judges. As a result, before you even set foot in the courtroom, you will have influenced them to rule in your favor – especially if your opponent’s research is incomplete and their writing is subpar.

[1] Colbert, Lori and Johnson, Greg, and Porto, Brian. "Effective legal Brief Writing," 2014 Fall Meeting, American Bar Association. 
[2] Legal Writing Prof. "Judges Discuss Good and Bad Legal Writing," Legal Writing Prof Blog, April 13, 2018.