Briefs in Law in Europe

Introduction

Briefs are, in the United States, legal documents written by attorneys, used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail. A brief is, then, in the U.S., a legal document prepared by a party to the Court. It contains information on the facts of the case, the legal issues to be decided, the law the Court ought to apply, and the decision the party desires the Court to reach.

In England and Wales, riefs are papers given to a barrister when they are instructed. Historically barristers have had a major role in trial preparation, including drafting pleadings and reviewing evidence. In some areas of law, that is still the case. In others, it is relatively common for a barrister to only receive a “brief” from an instructing solicitor to represent a client at trial a day or two before the hearing.

Purpose of Briefs

The purpose of a brief is to communicate a client’s position and to convince the court to adopt that position. The function of a brief is to briefly recite the facts of the case, explain the applicable law, apply the law to the facts of the case, because the judges do not need to do legal research.

The goal of a brief is to convince the Court that one’s position is correct, logical and reasonable. To be compelling, a brief must also be understandable and concise. The Court will read many briefs throughout the session, so it is important to write in a clear and interesting manner.

Therefore, it is advisable that Briefs should be very precise and gets to the point of the issues that
have been raised, not long pieces of paper.

Background

A brief is a legal argument based upon evidence, authorities, and precedents presented to the court for its consideration in support of applications, legal hearing and trials, motions or appeals. The brief presents both the facts of the case and the questions of law before the court, as well as the determination desire by the author(s).

Classic briefs are of value for researchers. Reviewing records and briefs may help researchers explain why the court reached a particular decision and the arguments that prevailed or failed. Also, it may be useful to review petitions for certiorari in cases the court declined to hear.

Types of briefs and distintion from other legal concepts

Documents from prior stages of the litigation may include pleadings, motions, trial transcripts and briefs.

• A motion is, In the United States, a procedural device to bring a limited, contested issue before a court for decision.
• The memo of law is the legal argument with cases/statutes as applicable offered in support of the motion.
• A pleading is, in the anglo-saxon legal systems, a formal written statement filed with a court by parties in a civil action, other than a motion.Pleading in England and Wales is covered by the Civil Procedure Rules (CPR). Pleading in United States federal courts is covered by the Federal Rules of Civil Procedure.
• Trial briefs are presented at trial to resolve a disputed point of evidence.
• Legal briefs are used as part of arguing a pre-trial motion in a case or proceeding.
• Merit briefs (or briefs on the merits) refers to briefs on the inherent rights and wrongs of a case, absent any emotional or technical biases.
• Amicus briefs refer to briefs filed by persons not directly party to the case. These are often groups that have a direct interest in the outcome.is someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. This may take of the form of legal opinion, testimony or learned treatise (the amicus brief).
• Appellate briefs refer to briefs that occur at the appeal stage.
• Brief of Real Party
• Intervener’s Brief
• Relator’s Brief
• Memorandum of law may be another word for brief, although that term may also be used to describe an internal document in a law firm in which an attorney attempts to analyze a client’s legal position without arguing for a specific interpretation of the law.
• IRAC Case Briefs are usually a one page review done by a paralegal or attorney, ultimately used by the attorney to find previously decided cases by an Appellate court, in State or Federal Jurisdiction, which show how the courts have ruled on earlier similar cases in court. is an acronym that generally stands for: Issue, Rule, Application, and Conclusion.

 

Table of Authorities

The table of authorities in most U.S. States is a list of all materials used to support the argument. It includes every page in the brief where the particular excerpt is found. It is similar to the bibliography of a term paper, except that the citation format is different, and cases are usually grouped by type: state statute, case law, Constitutional provisions and other materials.

This list not only verifies the sources used by the attorney, but is useful for the Court and for other attorneys to quickly determine what cases, statutes or other materials are being cited, and to easily locate these references in the original research materials used in preparing the case. Correct citation format shall be used as described later in this manual.

Statement of the Issues

This is a very short introductory statement of the legal issues or points of law involved in the case. It tells the Justices precisely what legal issues the attorney team wants the Court to decide.

Function

The brief or memorandum establishes the legal argument for the party, explaining why the reviewing court should affirm or reverse the lower court’s judgment based on legal precedent and citations to the controlling cases or statutory law. To achieve these ends, the brief must appeal to the accepted forces such as statutory law or precedent, but may also include policy arguments and social statistics when appropriate. For example if the law is vague or broad enough to allow the appellate judge some discretion in his decision making, an exploration of the consequences of the possible decision outside of legal formalism may provide guidance. Such arguments may also support a legal argument when the purpose of the law at issue may be clear, but the particular application of that law in service of that purpose is in dispute.
Procedure

The party filing the appeal — called the petitioner or appellant, who is attempting to convince the appellate court to overturn the lower court decision — is responsible for submitting his brief first. The responding party — the respondent or appellee, who is satisfied with the lower decision — then files a reply brief within a specified time. Depending on the local rules of procedure, the court may allow or even require the parties to then file additional replies to the opposing party’s briefs, multiplying the back-and-forth responses of the parties. Depending on local rules, the court may then decide the case purely based on the submitted briefs or may hear oral argument by the parties.

England

Upon a barrister devolves the duty of taking charge of a case when it comes into court, but all the preliminary work, such as the drawing up of the case, serving papers, marshalling evidence, etc., is performed by a solicitor. The delivery of a brief to counsel gives him authority to act for his client in all matters which the litigation involves.

The brief was probably so called from its first being only a copy of the original writ.

Contents

A brief contains a concise summary for the information of counsel of the case which the barrister has to plead, with all material facts in chronological order, and frequently such observations thereon as the solicitor may think fit to make, the names of witnesses, with the “proofs,” that is, the nature of the evidence which each witness is ready to give, if called upon. The brief may also contain suggestions for the use of counsel when cross-examining witnesses called by the other side. Accompanying the brief may be copies of the pleadings, and of all documents material to the case. The brief is always endorsed with the title of the court in which the action is to be tried, with the title of the action, and the names of the counsel and of the solicitor who delivers the brief. Counsel’s fee is also marked. The result of the action is noted on the brief by counsel, or if the action is compromised, the terms of the compromise are endorsed on each brief and signed by the leading counsel on the opposite side.
Brief bag

The brief-bag, in which counsel’s papers are carried to and from court, now forms an integral part of a barrister’s outfit, but in the early part of the 19th century the possession of a brief-bag was strictly confined to those who had received one from a king’s counsel. King’s counsel were then few in number, were considered officers of the court, and had a salary of £40 a year, with a supply of paper, pens and purple bags. These bags they distributed among rising juniors of their acquaintance, whose bundles of briefs were getting inconveniently large to be carried in their hands. These perquisites were abolished in 1830. English brief-bags are now either blue or red. Blue bags are those with which barristers provide themselves when first called, and it is a breach of etiquette to let this bag be visible in court. The only brief-bag allowed to be placed on the desks is the red bag, which by English legal etiquette is given by a leading counsel to a junior who has been useful to him in some important case.
English ecclesiastical law

In English ecclesiastical law a brief meant letters patent issued out of chancery to churchwardens or other officers for the collection of money for church purposes. Such briefs were regulated by a statute of 1704, but are now obsolete, though they are still to be found named in one of the rubrics in the Communion service of the Book of Common Prayer.

United States

In the United States, the word differs in meaning from its English counterpart because Attorneys in the United States exercise all the functions distributed in England between barristers and solicitors. A lawyer sometimes prepares for his own use what is called a “trial brief” for use at the trial. This corresponds in all essential particulars with the “brief” prepared by the solicitor in England for the use of counsel.

But the more distinctive use of the term in America is in the case of the brief “in error or appeal,” before an appellate court. This is a written or printed document, varying according to circumstances, but embodying the argument on the question affected. Most of the appellate courts require the filing of printed briefs for the use of the court and opposing counsel at a time designated for each side before hearing. In the rules of the United States Supreme Court and circuit courts of appeals the brief is required to contain a concise statement of the case, a specification of errors relied on, including the substance of evidence, the admission or rejection of which is to be reviewed, or any extract from a charge excepted to, and an argument exhibiting clearly the points of law or fact to be discussed. This form of brief, it may be added, is also adopted for use at the trial in certain states of the Union which require printed briefs to be delivered to the court.
Contents

In American courts, the brief typically has the following parts: a table of contents; a table of authorities listing the cases, statutes, and regulations that are cited; a presentation of the issues under review by the court, usually in only one sentence if possible; a statement of the case that presents the relevant facts and the previous history of the case in the lower courts; a summary of the legal standard of review that the appellate court should use in evaluating the decision of the lower court; a summary of the party’s argument; and the full discussion of the legal and/or policy arguments explaining why the party believes it should win the case, which will be the most lengthy portion of the brief. The brief may also be accompanied by an appendix that includes copies of the lower court opinions and other documents or court opinions cited in the brief. The particular required format of briefs is a matter of local court procedural rules.
Elsewhere

In Scotland a brief is called a memorial and in Canada it is called a factum. In Australia the tradition regarding briefs is almost identical to England, except that the use of brief bags is relatively uncommon. In Dutch and German, the word brief refers to a regular letter.
Professional vs. student briefs

In North American law schools, students usually study historical cases by “briefing” them. Law school briefs are shorter than court briefs but follow a similar structure: presentation of issue, presentation of facts, presentation of legal and policy arguments and presentation of outcome. In the United States, the practice of briefing cases for study began at Harvard Law School in the fall of 1870. Case briefing is a widely accepted pedagogical method among law professors today.

Briefs databases

Lawyers may use briefs databases that includes thousands of appellate court briefs that are contained in a variety of jurisdictional and topical databases. They learn from briefs in those legal databases how other attorneys have analyzed and argued similar issues. Briefs can also provide
insight into how opposing counsel might argue the other side of the case.

Statement of the Facts

The Statement of the Facts is a part of a brief, a retelling of the facts from the client’s point of view. However, the facts provided in Model Supreme Court Cases are not to be added to nor disputed.

Attorneys explain the situation in a way that helps their client. This is a very important part of the brief that sets the stage for the argument, and should be presented both to help the court understand the case and show the client in the best possible light. But, remember not to assume facts not given, and do not distort, change, or add to the facts!

Argument

This is the core of the brief. Students may find the argument to be somewhat like writing a persuasive essay with lots of research references. It presents support for the issues presented earlier. Solid research is used to back every part of the argument. Arguments must be well-organized and convincing; attorneys will win or lose their case based on the quality and substance of what is said.

Each point the team wants the court to consider in deciding the case must be described, and the reasons explained with appropriate references to research materials used, and text citations inserted as frequently as needed. Citation format examples appear later in this manual.

In the Model Supreme Court, arguments for each of the two issues should be at least one, but no more than three pages each. The total argument section should not exceed six (6) pages. Attorney teams are advised to have each member take one issue to research and prepare that portion of the argument for the brief. Remember: the total brief, except for title page and table of contents, must stay under the ten page limit.

The doctrine of judicial immunity is firmly entrenched in American law as held by the US Supreme Court when it stated “a like immunity extends to other officers of government whose duties are related to the judicial process.” Barr v. Mateo, 360 US 564, 569, 79 S. Ct. 1335, 3 L.Ed. 2d 1434, 1440 (1959). Accordingly, the doctrine of judicial immunity shields Sheriff Innocent from any liability arising from his release of the defendant, because he was acting upon the order of Judge Knowsit.

As shown above, the team first explains the rule of law, then shows how it applies to the particular case. If needed, a short direct quote is included to help the Court recall the precedent or law in question.

The team then makes additional arguments to demonstrate that Sheriff Innocent was not liable. They continue to cite relevant cases, statutes and constitutional provisions that further bolster their overall argument. (Reminder: participants are not to cite any additional material in their cases beyond what is included in the case packet.)

Structurally, each part of the argument is first directed at supporting the various issues of one’s own case, then also opposing the contentions anticipated to be brought up by the opposing party.

Stylistically, the argument is written in forceful, active, positive language. (A team wants the court to rule FOR their client, not simply against the opposing counsel.) The argument also forms the core of one’s oral presentation and will be used by the Justices to make their decision.

The writing of the argument, as shown in the sample brief, uses headings and subheadings to begin each section of the narrative and help clearly organize the argument. The same structure of headings and subheadings should be summarized in the table of contents. The idea is to do everything in terms of both form and substance to help the Court understand the reasonableness and logic of the argument, and thus decide in one’s favor.

Conclusion

This is where the Attorney team summarizes their argument and specifically states the result desired. The conclusion in a Model Supreme Court brief can be as short as one sentence, and should not exceed a single short paragraph. The signatures of the Attorney team follow the conclusion, as shown in the sample.

Citation Format

The strength of a legal argument depends in large part on how law, as established in previous court opinions and precedents, is applied to a given case. Therefore, citation of relevant statutes and case law is a critical part of legal writing. Justices and other interested parties often go to the source and read the full text of legal opinions in order to better understand a party’s argument.

Court opinions are widely published in books called reporters. This is where most citations to case law are made.

Courts require citation in a specific format which can vary from court to court. The Bluebook: A Uniform System of Citation, Cambridge: Harvard Law Review Association, most current edition, is the standard for legal citation in the United States. However, other courts use a format slightly different from the Bluebook.

See also

• Motion in law
• Memo of law
• Pleading

Further Reading

Stephen J. Dwyer, Leonard J. Feldman & Ryan P. McBride,
How to Write, Edit, and Review Persuasive Briefs: Seven
Guidelines from One Judge and Two Lawyers, 31 Seattle U. L.
Rev. 417 (2008).
■ William Eich, Writing the Persuasive Brief, 76 Wis. Law. 20
(Feb. 2003).
■ Steven R. Merican, Thoughts from an Unconstrained
Practitioner: Writing an Appellate Brief, or, How to Make Tax
Law an Interesting Read, 19 DCBA Brief 10 (Mar. 2007).
■ Brian L. Porto, The Art of Appellate Brief Writing, 29 Vt. B.J. 30
(Summer 2003).
■ Harry Pregerson, The Seven Sins of Appellate Brief Writing and
Other Transgressions, 34 UCLA L. Rev. 431 (1986).

Law Library of Congress

Cornell Law School Law Library (“A Research Guide by Matt Morrison”)

Duke University Law School

Georgetown University Law School