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Part 1 How to Get a Higher Brief Score

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Title: Part 1 How to Get a Higher Brief Score


1
Part 1 How to Get a Higher Brief Score
  • Moot Court Brief Writing Workshop
  • Fall 2008 Friday
  • Lauren Simpson

2
Eleven 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

3
Tips 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

4
Tips 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

5
Tips continued
  • Schedule your work!
  • Timing
  • review
  • Use your authority well and wisely
  • Use
  • Quantity
  • Quality
  • Placement

6
Part 2 Parts of the Brief
  • Moot Court Brief Writing Workshop
  • Fall 2008 Friday
  • Lauren Simpson

7
What 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)

8
Appellants (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

9
Appellees (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.

10
Part 3 Theme
  • Moot Court Brief Writing Workshop
  • Fall 2008 Friday
  • Lori Twomey

11
To 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

12
McKethan vs. Addison
  • Considering the applicable law
  • What are some possible themes for McKethan on
    appeal?
  • What are some possible themes for Addison on
    appeal?

13
Part 4 Headings
  • Moot Court Brief Writing Workshop
  • Fall 2008 Friday
  • Lori Twomey

14
Characteristics 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)

15
1. 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

16
2. 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.

17
3. 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.

18
Example 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.

19
4. 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

20
Use 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.

21
Exercise
  • 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.

22
Part 5 Table of Contents and Table of
Authorities
  • Moot Court Brief Writing Workshop
  • Fall 2008 Friday
  • Lori Twomey

23
Table 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

24
Table 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

25
Part 6 Questions/Issues Presented
  • Moot Court Brief Writing Workshop
  • Fall 2008 Friday
  • Lauren Simpson

26
Questions/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)

27
Examples
  • 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?

28
Examples 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.

29
Examples 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?

30
Exercise
  • 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.

31
McKethan 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?

32
McKethan 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.

33
McKethan 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?
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