Archives: Tips and Tactics

As a very general rule, arguments in a brief should appear in order of descending power or importance.  A judge may stop reading on reaching a clearly winning argument or on deciding that the opening briefing is so weak as not to justify more time.  Either way, there is no benefit in saving the best for last.  There are a few exceptions:

• Jurisdictional arguments normally go first, even if they are not the strongest.  If the jurisdictional argument is a winner, the court has no power to rule on the remaining arguments.  A judge may not appreciate having to read pages of substantive arguments before reaching a dispositive jurisdictional point.
• Other arguments that will be dispositive if accepted, like statute of limitations, should appear early in the brief on the same reasoning.
• Arguments that raise the rights of absent third parties often should lead.  A court will not rule on the merits in the absence of an indispensable third party, so it makes sense to resolve early whether the third party must be joined.
• Very short arguments might be offered early even if they are not the strongest.  This depends on the relative strength and the characteristics of the various arguments.  A short argument that accurately and fairly casts the opponent in a negative light might be made early so that the remaining arguments are seen in that light.  A weak and technical short argument is best left to the end or omitted.
• The number and complexity of the facts required to present the argument may affect the placement.  A judge may absorb all the facts at once, in an opening presentation, or a judge may more easily absorb an initial overview of the facts followed by briefing of specific arguments and the facts relevant to those arguments.
• Some arguments build on an earlier argument or make sense only after an earlier argument. Look for any logical connections that impact the ordering of the arguments.

There are many citation styles one could use in writing briefs—The Bluebook, The Redbook, the University of Chicago Manual of Legal Citation, the California Style Manual, and so on.  One is not inherently superior to another.  If the court that will consider the brief has a required style, then that ends the matter.

The fundamental rules for good citations are a very few:

• citations must provide everything the reader must know to locate the source;
• citations need to be simple, easy to understand and remember; and
• citations in a single brief need to be consistent in format and presentation.

Every deviation from consistent citation style that is not obviously justified by some immediate need to provide additional information is a distraction to the reader.  Every distraction pulls the reader away from the brief’s goal (affirmance or reversal).

Despite the various instructions to use supra and infra, it is better to give full citations to cases every time that you cannot use Id.  The benefits are several:

• you can move sections of the brief around freely when you realize that a later argument is stronger than first thought or logically belongs earlier in the brief.  There is no need to search for the parts of citations omitted when supra is used.
• the court can see which circuit and court decided the case.  If you spend the extra time to locate authority in the same circuit, why lose the benefit of that information in the second citation?
• using supra doesn’t save that much space anyway.

Abbreviations are another place where you may decide not to follow the rules too strictly.  Consistency in abbreviations may be more important than perfection in abbreviating in accordance with a long list of hundreds of terms.  Abbreviate when you really get some benefit, such as Mgmt. instead of Management, and when the abbreviation is common, such as Ins. for Insurance and Co. for Company.  Memorize the 20 or 30 words that are worth abbreviating consistently in case names and write all others out in full.  This approach allows your writing to flow without having to look up an abbreviation or think about whether to abbreviate words in a citation.

Many laws are enacted as a coherent whole and then divided and separated when they are codified.  Part of the statute may be sprinkled into the jurisdiction and procedure code, part into one substantive code and the rest into another.  Additionally, within one code, sections of a single statute may appear widely separated.  Two federal examples:

• The Chief Financial Officers Act of 1990 appears in the following United States Code titles: 5, 31, 38 and 42.
• The Child Abuse, Domestic Violence, Adoption and Family Services Act of 1992 appears in United States Code title 42, but part is codified between 5101 to 5118e and the rest between 10401 to 10415.

Reviewing the entire statute may reveal arguments that are not apparent when only a segment is examined.  The entire statute may reflect a statutory intent that is not immediately apparent from isolated sections.  Definitions may be codified in one section that illuminate the meaning of other, distant sections.

• Bennett v. Spear, 520 U.S. 154, 174 (1997) (“Viewed in the context of the entire statute, § 1540(g) (1)(A)’s reference to any ‘violation’ of the ESA cannot be interpreted to include the Secretary’s maladministration of the ESA.”)
• Gray v. Administrative Director of Court, 84 Haw. 138, 148, 931 P.2d 580, 590 (1997) (citations omitted) (“we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose”)
• State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979) (“In ascertaining this intent, courts must examine the entire statute or act and not merely an isolated portion thereof.”)
• Shotz v. City of Plantation, 344 F.3d 1161 (11th Cir. 2003) (“While that definition expressly applies to Subchapter I of the ADA, we ‘may consider Congress’s use of a particular term elsewhere in the statute to determine its proper meaning within the context of the statutory scheme.’
• Goodlin v. Medtronic, Inc., 167 F.3d 1367, 1374 (11th Cir. 1999); see also Doctor’s Hosp., Inc. v. Bowen, 811 F.2d 1448, 1452 (11th Cir. 1987) (‘A presumption is made that the same words used in different parts of an act have the same meaning.’).”)

To locate the whole statute, use the historical references to trace back to the original statute as enacted.  Different states offer different tools for locating session laws, enrolled bills and other acts of the legislature.  Among other sources, see http://www.lawsource.com/also/.

Consider whether you are really done.  Have you answered the question(s) that were asked?  All the questions?  Are all the factual and procedural statements supported by citations to the exhibits?  Are there any omitted evidentiary points that may benefit your client as to burden of proof or presumptions in favor of your client or against your adversary?

Then follow these steps in the order that makes sense based on the nature of the brief and your work:

One time, proofread just the headings or captions.  Cut and paste the headings into a separate document.  Read them apart from the brief.  Do they make sense?

Are the captions parallel in structure and tense so that they flow pleasingly?

Should you add subheadings to assist the reader or make other adjustments?

Is there a step skipped over in the reasoning? Continue reading →

In the “olden days,” as recently as the 1970s, briefs had to be written by hand or dictated, then typed on a typewriter.  An omission or error often meant having to retype the entire page.  The computer can be used simply as a fancy typewriter, but writing on the computer is fundamentally different in kind as well as in quality. The following comments assume the writer starts with the appellate record or an opening or opposition brief on appeal and is required to produce an opening, opposition or reply brief:

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