Title: Part 1 How to Get a Higher Brief Score
1Part 1 How to Get a Higher Brief Score
- Moot Court Brief Writing Workshop
- Fall 2008 Friday
- Lauren Simpson
2Eleven Tips for Winning Best Brief
- Strive for technical perfection
- In prose
- In citation
- In compliance with the rules
- Be consistent
- In substance
- In form
- In format
- Be concise and clear
3Tips continued
- Use headings and subheadings to keep your writing
organized - Put it in English!
- Avoid using terms that will distract from your
arguments because they are too charged - Examples clearly and obviously
4Tips continued
- Carefully consider the number and order of your
arguments - Triage
- Number
- Organization
- Avoid controversial positions or arguments that
are too outside the box - Know and use your theme throughout
5Tips continued
- Schedule your work!
- Timing
- review
- Use your authority well and wisely
- Use
- Quantity
- Quality
- Placement
6Part 2 Parts of the Brief
- Moot Court Brief Writing Workshop
- Fall 2008 Friday
- Lauren Simpson
7What Rules Apply to Your Brief
- Know your Specific Competitions Rules
- Substantive Rules
- Procedural Rules
- Most Competitions Follow the U.S. Supreme Court
Rules for Briefs - The Supreme Court Rules may be found at
http//www.supremecourtus.gov/ctrules/2007rulesoft
hecourt.pdf - Some Competitions May Follow the Federal Rules of
Appellate Procedure (FRAPs) - FRAPs may be found at http//www.uscourts.gov/rule
s/ - Most Competitions Also Follow Fictional Local
(Competition) Rules (Found in the Problem
Packet)
8Appellants (Petitioners) Brief
- General Format for Appellant/Petitioner Moot
Court Brief Supreme Court Rule 24 - Cover Page
- Questions Presented
- List of Parties/Amended corporate Disclosure
Statement usually not required in moot court - Table of Contents
- Table of Cited Authorities
- Opinions Below
- Jurisdictional Statement
- Constitutional and Statutory Provisions
- Statement of the Case Including Facts and
Relevant Procedure - Summary of the Argument
- Argument
- Conclusion Containing Relief Sought
- If your competition uses FRAPs look at FRAP 28
9Appellees (Respondents) Brief
- General Format for Appellee/Respondents Moot
Court BriefSupreme Court Rule 24 - Brief must usually comply with everything that is
required for Appellant/Petitioners Brief, but
may omit - list of parties
- opinions below
- jurisdictional statement
- constitutional and statutory provisions
- Note check your competitions rules to see if
you may omit these items! - Rule 24 allows Appellee/Respondent also to omit
questions presented and statement of the case,
but in moot court, you will never omit these
sections. - If your competition uses FRAPs, look at FRAP
28.
10Part 3 Theme
- Moot Court Brief Writing Workshop
- Fall 2008 Friday
- Lori Twomey
11To Theme or Not to Theme
- On appeal, you should ALWAYS HAVE A THEME, but it
should never be hokey - What is a Theme?
- In a nutshell, the main point you want to get
across to the court - A unifying statement that everything on that
issue in your brief can relate to - Factual v. Legal Based Themes
- Example (Factual) This case involves a
political protest that went too far - Example (Legal) The trial court does not have
the discretion to allow testimony from an
unqualified expert - Example (Legal) - Allowing the appellate courts
interpretation of the statute to stand would lead
to absurd results - Avoid Statements Such as Clearly and Obviously
12McKethan vs. Addison
- Considering the applicable law
- What are some possible themes for McKethan on
appeal? - What are some possible themes for Addison on
appeal?
13Part 4 Headings
- Moot Court Brief Writing Workshop
- Fall 2008 Friday
- Lori Twomey
14Characteristics of Good Headings
- They should be positive, persuasive statements
relating to an argument supporting your position. - Most good argumentative headings have five
characteristics - They are framed as positive assertions
- They set out both your position and the support
for that position - They are as specific as possible (including
relevant facts if applicable) - They are simple and easy to read
- They tell the court what you want them to do
(typically for main heading only not subheads)
151. Positive Assertions
- If your heading is to be persuasive, it needs to
be in the form of a positive assertion. - Compare
- The trial court did not act properly when it
denied Mr. Strongs motion to suppress because - The trial court did not err when it denied Mr.
Strongs motion to suppress because - with
- The trial court erroneously denied Mr. Strongs
motion to suppress because - The trial court properly denied Mr. Strongs
motion to suppress because
162. Provide Support for Your Positions
- A common pattern for an argumentative heading is
- Position because/when support for position
- (Put another way) The result you seek because
the part of the rule that justifies the result
key facts that support that result (for mixed
questions of law and fact) or supporting
rationale (for pure questions of law) - Examples
- The motion to disqualify should be denied because
Carsons failure to respond to Andersons letter
constituted consent to the representation of
Janoff. - The trial court properly granted Smiths Motion
for Summary Judgment because seeking limited
medical treatment for minor mental anguish does
not satisfy the severe emotional distress
element.
173. Make the Headings as Specific as Possible
- If you have a main heading without any
subheadings, your support should be specific - If you have a main heading with subheadings, your
main heading can be more general - Write statements that talk specifically about the
parties and facts in your case. - Set out the facts from the clients point of view
- Omit facts when your question is a pure question
of law and, therefore, does not turn on how the
law applies to your clients facts - Omit facts when the key facts, stated briefly and
without further explanation, are less than
persuasive - GENERAL
- The trial court erred when it denied defendant's
motion to suppress because there was a show of
authority. - More SPECIFIC
- The trial court erred when it denied Mr.
Strongs motion to suppress because the police
departments use of a spotlight was a show of
authority.
18Example Main Heading with Subheadings
- Under the Fourth Amendment, the trial court
improperly denied Mr. Strongs Motion to Suppress
because the polices act of shining a spotlight
on Mr. Strong was a show of authority and Mr.
Strong submitted to their authority. - A. The use of a spotlight was a show of
authority because a reasonable person would not
have felt free to leave. - B. Mr. Strong submitted to the show of
authority when he did not leave the spotlighted
area and he stopped before being ordered to do so.
194. Make your headings simple and easy to read
- Keep your headings short
- One (maybe two) complete sentence(s)
- Usually no more than two or three lines of type
- If you find yourself needing to put too many
thoughts into one heading, maybe you should break
the section and use sub-headings. - Each Issue will have ONE main heading. Each
independent ground for recovery on that issue
will have its own subheading and sub-subheadings - All subheads should directly support the heading
above it
20Use Conventional Formats for Headings
- If you decide to use subheadings, you must use at
least two, otherwise merge the one subheading
into the main heading. - Use the space between your heading and subheading
to set out your thesis paragraph for that section
of your brief. - Use different typeface treatments (italicize,
underline, bold, ALL CAPS) for Section Headings,
Issue Headings, and Issue Subheadings - Only use ALL CAPS for Section Headings, e.g.,
ARGUMENT, STATEMENT OF FACTS - Use standard outline format for numbering
I./A./1./a./i.
21Exercise
- You represent Laura McKethan (Petitioner) in her
appeal against Samuel Addison. On appeal, you
are arguing that the trial court was wrong in
granting Addisons Motion for Summary Judgment on
McKethans claim of IIED. - You are currently writing an appellate brief
strictly on the extreme and outrageous conduct
element of IIED. Organize the arguments for this
issue and draft all relevant headings and
sub-headings relating to that element. - Once you have completed your headings, (1) e-mail
them to me at tlori_at_central.uh.edu and (2)
exchange your work with a partner and critique
your partners headings.
22Part 5 Table of Contents and Table of
Authorities
- Moot Court Brief Writing Workshop
- Fall 2008 Friday
- Lori Twomey
23Table of Contents
- Headings and Subheadings are taken directly from
your argument section and put in the TOC - The brief judge will mentally make a
determination regarding how good your brief will
score just from reading your table of contents. - Making a TOC Exercise
24Table of Authorities
- Cite to as many authorities as possible (without
doing massive string cites) - Your ToA should be at least 5 or 6 pages long
- Where applicable cite to (1) cases from all court
levels, (2) federal and state cases, (3)
statutes, (4) constitutional provisions, (5)
legislative history, (6) law reviews, journal
articles, and treatises and (7) any other source
you can think of - Dont use pinpoint citations in the ToA
- Your citation must be technically PERFECT
- Make the ToA visually appealing
- Passim (Bluebook Rule 5.1.2) use when the
authority is cited on more nonconsecutive pages
than is convenient to list
25Part 6 Questions/Issues Presented
- Moot Court Brief Writing Workshop
- Fall 2008 Friday
- Lauren Simpson
26Questions/Issues Presented
- Basic Pointers
- What to convey
- How to formulate
- Single-Sentence Format
- Forms
- whether format, giving legal issue (Garner and
Aldisert advise against, but it is often used) - Full sentence, giving issue and background
information - Advantages
- Disadvantages
- Multiple-Sentence Format (Garner and Aldisert
recommend) - Structure and format
- Specifics
- Garner end with a question
- Aldisert end with a declarative
- Advantages
- Bryan A. Garner, The Winning Brief (2d ed.
2004) Ruggero J. Aldisert, Winning on Appeal
(2nd ed. 2003)
27Examples
- Multiple Sentence Ending in Question (Garner)
- Under Texas law, a peace officer may conduct a
warrantless search only when the officer suspects
a crime is being or has been committed. In the
trial court, the investigating officer testified
he did not suspect the commission of a crime. Did
the trial court err in determining the
warrantless search was legal?
28Examples continued
- Multiple Sentence Ending in Declarative Statement
(Aldisert) - Under Texas law, a peace officer may conduct a
warrantless search only when the officer suspects
a crime is being or has been committed. In the
trial court, the investigating officer testified
he did not suspect the commission of a crime.
The trial court erred in implicitly determining
that the officers warantless search was legal.
29Examples continued
- Single Sentence Format
- Under Texas law, which permits a warrantless
search only upon suspicion a crime is being or
has been committed, did the trial court err in
finding the warrantless search was legal when the
officer testified he had no suspicion of a crime?
30Exercise
- Use McKethan vs. Addison to formulate issue
statements for the extreme and outrageous
conduct element of IIED. You should formulate
one issue statement for each of the three formats
discussed today. You represent Petitioner in
this exercise. - Once you have completed your issue statements,
please exchange your work with a partner and
critique your partners issue statements.
31McKethan v. Addison Issue Statements
- Multiple Sentence (Deep Issue) Ending in
Question (Garner)Petitioner - A person is liable if his conduct is so
outrageous and extreme as to exceed all possible
bounds of decency, considering the conducts
context and the parties relationship. After
Mckethan ended a relationship with Addison,
Addison harassed her with repeated calls, broke
into her home, brandished a knife at her,
threatened to scar and to disfigure her when he
knew that her career depended on her appearance,
and scoffed that he might return. Were Addisons
harassment and threats extreme and outrageous?
32McKethan v. Addison continued
- Multiple Sentence (Deep Issue) Ending in
Declarative (Aldisert)Petitioner - A person is liable if his conduct is so
outrageous and extreme as to exceed all possible
bounds of decency, considering the conducts
context and the parties relationship. After
Mckethan ended a relationship with Addison,
Addison harassed her with repeated calls, broke
into her home, brandished a knife at her,
threatened to scar and to disfigure her when he
knew that her career depended on her appearance,
and scoffed that he might return. Addisons
harassment and threats were extreme and
outrageous.
33McKethan v. Addison continued
- Single Sentence (Question)Petitioner
- Is Addison liable for his outrageous and extreme
conduct when, after Mckethan had ended a
relationship with him, he harassed her with
repeated calls, broke into her home, brandished a
knife at her, threatened to scar and to disfigure
her when he knew that her career depended on her
appearance, and scoffed that he might return?