Brief Writing: Making a Brief Helpful and Persuasive

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Brief WritingMaking a Brief Helpful and
Persuasive

• Robert Dubose
• Alexander Dubose Jones Townsend
• rdubose_at_adjtlaw.com

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4 Keys for a Winning Moot Court Brief

• 1 Clarity
• Organization should be highly visible
• Brief should be easy to read.
• Arguments should be easy to understand.

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4 Keys for a Winning Moot Court Brief

• 2 - Persuasive arguments
• For most judges, persuasiveness is more
  important than creativity.
• Judges may have a checklist for persuasive
  arguments.
• Avoid arguments that damage credibility.

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4 Keys for a Winning Moot Court Brief

• 3 - Technical proficiency
• Grammar, spelling, blue book
• Competition rules

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4 Keys for a Winning Moot Court Brief

• 4 Lots of research
• A long index of authorities helps win moot
  court competition

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Tools for Organization Helping the reader see
your organization and understand your argument
more quickly
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Tool 1 Summary of Argument Short but Specific

• A summary of argument needs to be short (1 2
  pages)
• But the Court needs some specifics to be
  persuaded.
• Conclusory generalizations are not
  persuasive.
• The key specific facts and legal arguments
  are necessary to persuade.

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Example Conclusory Summary

• The trial court committed a grossly erroneous
  evidentiary ruling by excluding evidence of the
  plaintiffs Mary Carter settlement agreement with
  a defendant in this case. By its terms, the
  agreement here was clearly a Mary Carter
  agreement. Texas courts have repeatedly held that
  it is error to exclude evidence of a Mary Carter
  agreement and that the error is reversible.

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Example Specific Summary

• The trial court erred when it excluded evidence
  of plaintiffs Mary Carter settlement agreement
  with Fred Johnson. Johnson was a defendant, as
  well as plaintiffs main witness. The agreement
  was a Mary Carter Agreement because it relieved
  Johnson of liability only if the plaintiffs were
  successful against the other defendants. The
  exclusion of a Mary Carter agreement is always
  reversible error because it prevents the jury
  from learning the bias of the witness and the
  true alignment of the parties.

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Summary Analysis of example

• Specific facts
• -Plaintiffs settled with Johnson.
• -Johnson was a defendant and plaintiffs main
  witness.
• -The settlement relieved him of liability if the
  plaintiffs succeeded against other defendants.
• Specific legal arguments
• -The specifics of this settlement met the
  definition of a Mary Carter agreement.
• -It is reversible error to exclude a Mary Carter
  agreement because the agreement shows the
  witness bias and the parties true alignment.

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Summary Example 2

• The trial court did not abuse its discretion in
  overruling Federateds objections to requests for
  production. In response to the 19 requests,
  Federated asserted over 130 objections. It even
  objected to the production of items that are
  always discoverable, such as its insurance
  policies. Because the trial courts discretion
  in ruling on the objections was broad, its ruling
  did not abuse that discretion.

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Summary Analysis of example

• Best arguments
• 1. 130 objections to 19 requests
• 2. Focus on weakest objection insurance
  policies not discoverable
• 3. Standard of review is abuse of discretion.

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Tool 2 - Argument headers

• Purposes of a header
• 1 - Quick summary
• 2 - Welcome pause in a string of paragraphs
• 3 - Transition
• 4 - Demonstration of organization
• 5 - Index to help locate arguments

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Argument headers

• Characteristics of effective headers
• 1 Use a complete sentence - not just a phrase
• 2 Make a positive argument - not just a
  neutral summary of a legal rule
• 3 A reader should be able to read only the
  headers and understand the argument.

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Argument headers Examples of weak headers

• A. Standard of review
• B. The existence of a duty to disclose is an
  element of fraudulent concealment.

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Argument headers Example of a persuasive header

• A. The summary judgment against Jones
  fraudulent concealment claim should be affirmed
  if there was no evidence that Smith owed a duty
  to disclose.

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Tool 3 Argument Outline

• Headers outline structure
• Adds a visible logic to the structure of the
  argument
• Allows the Court to see which points are
  subsidiary, supporting points

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Outline - Example

• A. The Court should affirm summary judgment on
  Jones fraud claim because Jones signed a valid
  disclaimer of reliance.
• 1. Summary judgment was proper if the evidence
  negated the reliance element of fraud.
• 2. Under Schlumberger, the disclaimer of
  reliance signed by Jones negates reliance.

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Tool 4 Lead with Conclusions

• Every argument paragraph should have one primary
  argument.
• The argument of the paragraph should appear in
  the first two sentences of the paragraph.
• This helps the reader see how the remainder of
  the paragraph supports the main argument.

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Tool 5 - Begin discussing a case with the
reasons you are citing it

• This tells the reader why he or she should read
  about the case
• This helps the reader process the information
  about the case, i.e.
• why the facts matter,
• how the reasoning of the case supports the
  argument

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Example No conclusion to lead case discussion

• In Szczepanik, the former employee of an
  investment broker resigned and formed a competing
  firm, taking 36 million in accounts with him.
  cite. The investment broker proved the value
  of those accounts and proved that it could have
  expected to retain those accounts for the
  lifetime of the account holders. The Texas
  Supreme Court held that this evidence was legally
  insufficient proof of lost profits. cite.

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Example conclusion to begin case discussion

The Szczepanik case demonstrates why there was no
evidence to support Smiths claim for lost
profits. Under Szczepanik lost profits cannot be
recovered unless there is evidence that the
plaintiffs customers would have continued doing
business with the plaintiff but for the
defendants conduct.
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Example 2 adding a conclusion to begin case
discussion

Although Smiths argument relies on Szczepanik,
that case is distinguishable because there was no
proof that the plaintiffs former customers would
have continued doing business with the plaintiff
if the defendant had not wrongfully taken those
customers.
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Tool 6 Repeat buzzwords and phrases

• Using different words for the same concept make
  an argument hard to follow.
• Repetition makes the argument easier to follow.
• Repetition reinforcement.

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Example with synonyms instead of repetition

• The district court committed reversible error
  because it excluded Smiths report.
• First, the lower court abused its discretion by
  not admitting Smiths report.
• Second, the trial courts improper action by
  refusing to admit Smiths report was not harmless
  error.

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Example with repetition

• The district court committed reversible error
  because it excluded Smiths report.
• First, the district courts exclusion of Smiths
  report was error.
• Second, the district courts error in excluding
  Smiths report was reversible.

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Tools for Persuasive Arguments
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Tool 7 Argument selection

• Credibility is critical
• Place your best argument first
• Delete weak arguments because they hurt
  credibility
• Delete unnecessary information
• But anticipate and answer potential questions
  that the Court will have

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Tool 8 Write arguments, not opinions or law
review articles

• Avoid judicial and academic conventions
• Long neutral statements of various legal rules
• Overuse of footnotes

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Write arguments Example of a neutral discussion

• When interpreting an insurance policy, as any
  other contract, courts should read all parts of
  each policy together and exercise caution not to
  isolate particular sections or provisions from
  the contract as a whole. State Farm Life Ins.
  Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995)
  Gen. Am. Indem. Co. v. Pepper, 161 Tex. 263, 339
  S.W.2d 660, 661 (1960).

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Write arguments Example of an argument

• Dominions argument improperly focuses on the
  notice exclusion in isolation from the rest of
  the policy and violates the rule that insurance
  policies should be read as a whole. See State
  Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430,
  433 (Tex.1995).

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Tool 9 - Join the Issue

• Joining the issue involves three steps of
  argument
• Make the best arguments for your position
• Acknowledge briefly the best argument for the
  other sides position
• Explain why your arguments should prevail over
  the best argument for the other side

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Why joining the issue is persuasive

• Fairly acknowledging the other sides argument
  is a sign of objectivity and strength.
• It helps the court weigh the arguments and
  understand why your arguments are better.

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Join the Issue Example 1

• This case presents a choice between two legal
  rules. The State proposes a rule that would give
  the police good cause to search any citizen based
  on any anonymous tip about criminal conduct,
  regardless of whether that tip is reliable. In
  contrast, the better rule is the rule established
  by existing precedent. Under that rule, an
  anonymous tip must have some indicia of
  reliability. In other words, there must be some
  external fact that corroborates the accuracy of
  the tip.

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Join the Issue Example 2

• Fields proposes that Houston Cab should be
  liable for negligent entrustment because it
  violated its own internal requirements for
  drivers. No Texas court has adopted Fieldss
  proposed rule. The rule would punish businesses
  by lowering the bar for liability whenever
  businesses try to set a higher internal bar than
  the law requires. It would discourage the use of
  safety policies.

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Tool 10 Support arguments with policy

• Identify the negative consequences of the other
  sides proposed rule. Or identify the benefits
  of your rule.
• Use analogies to other situations.
• If possible, include a citation that recognizes
  the policy, even if in a different context. But
  if necessary, assert the policy without a cite.

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Support arguments with policy

• BUT
• As a general rule, dont label your argument as
  a policy argument.
• Try to weave policy arguments into other
  arguments. Avoid having a separate part of your
  brief for just policy arguments.

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Policy argument Example 1

• It is consistent with the purpose of the
  economic loss rule to apply it to insurance
  broker negligence. In Calloway, the Nevada
  Supreme Court held that the economic loss
  doctrine prohibits recovery in tort for purely
  economic losses. Id. at 1263. The purpose of
  the doctrine is to shield a defendant from
  unlimited liability for all of the economic
  consequences of a negligent act, particularly in
  a commercial or professional setting, and thus .
  . . keep the risk of liability reasonably
  calculable. Id. at 1266. It makes sense to
  apply the rule to this commercial setting
  broker negligence to shield defendants from
  unlimited liability for economic consequences.

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Policy argument Example 2

• The rule promoted by the insurers would require
  this Court to interfere with the free market for
  insurance. Instead of changing the terms of
  insurance policy contracts in the free market,
  the insurers are now asking this Court to alter
  existing contract language by judicial fiat.
  This Court has long recognized that contracts,
  when entered into freely and voluntarily, shall
  be held sacred, and shall be enforced by courts
  of justice. Mo., Kan. Tex. Ry. v. Carter, 95
  Tex. 461, 68 S.W. 159, 164 (1902). This Court
  should decline the insurers invitation to
  interfere with the freedom of contract and the
  free market for insurance.

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Policy argument Example 3

• Smiths proposed rule would punish businesses
  by lowering the bar for liability whenever
  businesses set their own internal rules. For
  example, consider a company that adopted an
  internal policy of hiring drivers with 2015
  vision, but mistakenly hired a driver with only
  2020 vision. If that driver was involved in a
  collision, would the company be subject to
  negligent liability entrustment for hiring a
  reckless driver because the drivers vision was
  only 2020? Not only would that rule be
  unfair, but by expanding potential liability,
  Smiths proposed rule would discourage businesses
  from creating any internal policies for lending
  vehicles, apart from meeting the minimal legal
  standard to avoid a claim of negligent
  entrustment.

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Brief WritingMaking a Brief Helpful and
Persuasive

• Robert Dubose
• rdubose_at_adjtlaw.com