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 2009
2Eleven Tips for Winning Best Brief
- Read Winning Briefs
- Technical perfection
- In grammar, punctuation, sentence structure, etc.
- In citation
- In compliance with the rules
- Be consistent
- In substance
- In form
- In format
3Tips continued
- Be concise and clear
- Write in Plain 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
- Use your authority well and wisely
- Use
- Quantity
- Quality
- Placement
- Schedule your work!
- Timing
- review
6Part 2 Parts of the Brief
- Moot Court Brief Writing Workshop
- Fall 2009
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 also allows Appellee/Respondent to omit
the 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 2009
11Persuasive Arguments Have a Theme (The Big
Idea)
- The big idea is the theme of the case. Its the
central, unifying idea that convinces the judge .
. . this is what happenedand who is responsible
for itbecause their values and sense of
plausibility says, This is how the world works.
The themethe big ideashapes everything you do .
. . . - James W. McElhaney, ABA Journal, The Big
Idea (Aug. 2006).
12To Theme or Not to Theme
- 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 (Factual) Every bankruptcy is a
tragedy, but every tragedy isnt a crime - 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 result - Avoid Statements Such as Clearly and Obviously
13McKethan vs. Addison
- Considering the applicable law
- What are some possible themes for McKethan on
appeal? - What are some possible themes for Addison on
appeal?
14Part 4 Headings
- Moot Court Brief Writing Workshop
- Fall 2009
15Characteristics 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)
161. 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 for summary judgment
because - The trial court did not err when it denied Mr.
Strongs motion for summary judgment because - with
- The trial court erroneously denied Mr. Strongs
motion for summary judgment because - The trial court properly denied Mr. Strongs
motion for summary judgment because
172. Provide Support for Your Positions
- A common pattern for an argumentative heading is
- Assertion because/when support for assertion
- (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.
183. 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.
19Example Main Heading with Subheadings
- Under the Fourth Amendment, the trial court erred
in denying Mr. Strongs Motion to Suppress
because the spotlight shined on Mr. Strong was a
show of authority and Mr. Strong submitted to the
authority - A. The 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.
204. 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
21Use 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.
22Exercise
- 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.
23Part 5 Table of Contents and Table of
Authorities
- Moot Court Brief Writing Workshop
- Fall 2009
24Table 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
25Table 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
26Part 6 Questions/Issues Presented
- Moot Court Brief Writing Workshop
- Fall 2009
27Questions Presented for Review
- You need to have ONE question presented for each
(of the two) issue outlined in the problem packet - Draft a separate QP for each issue (number them),
using parallel format for each question - Your presentation of the issue should encourage
the court to find in favor of your clients
position (without unnecessary argument) - Is a covenant-not-to compete enforceable when the
covenant was a term bargained for as part of the
sale of the business when the sale specifically
included the companys customer list? - Is the enforcement of a covenant-not-to compete
against public policy when the covenant would
eliminate all competition within the market area?
28Questions Presented for Review
- Typeface regular type/no bold or all caps
- Order
- same order as discussed in your argument section
- same order as presented in the problem packet
- Contents
- applicable law
- material facts
- legal issues
- potentially incorporate the standard of review
- Format Options
- Can be a question or a declaratory sentence
- Can be one sentence or multiple sentences (but
keep short) - Whether, Under/Does/When, Deep Issue
29Example Whether/When (Weak DO NOT USE)
- One sentence
- Statement, not question, ends with a period
- This form does not make a complete sentence
- The implied subject and verb are The issue is
whether - Call section Issues Presented rather than
Questions Presented - Example Whether the trial court erred in
finding a peace officer may conduct a warrantless
search when testimony indicated the peace officer
did not suspect a crime was being committed.
30Example Under/Does/When
- Under applicable law, does/is/can/did your
client violate/liable for/do an action/recover
when the listed facts exist? - One complete sentence
- Ends in question mark
- Example 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?
31Critique the Following Questions Presented
- May the Plaintiff enforce the terms of a
covenant-not-to-compete when the terms of the
covenant are unreasonable? - Can Plaintiff bring a claim for malicious
prosecution? - Can a reckless defendant, whose callous conduct
caused the death of a precious new life, escape
liability for wrongful death just because the
babys guardians had not yet completed the
adoption process?
32Example Deep Issue
- Typically three separate sentences
- Sentence 1 Relevant Law
- Sentence 2 Relevant Facts (in a declaratory
sentence) - Incorporate enough detail to convey they sense of
a story - Sentence 3 Question or Issue Presented
- In terms of the relevant law and facts
- Can either be a question or a statement
- Example 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? - or The trial court erred in implicitly
determining that the officers warantless search
was legal.
33Exercise
- Use McKethan vs. Addison to formulate your
questions presented for review - Please exchange your work with a partner and
critique your partners issue statements.
34McKethan v. Addison Issue Statements
- Multiple Sentence (Deep Issue) Ending in
Question 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?
35McKethan v. Addison continued
- Multiple Sentence (Deep Issue) Ending in
Declarative 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.
36McKethan 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?
37Part 7 Editing
- Moot Court Brief Writing Workshop
- Fall 2009
38Brief Editing Techniques
- Large Scale Editing
- First Edit Structure and Organization
- Is the brief as a whole laid out in a logical
fashion? - Does the brief have visual appeal? Proper
typesetting, page breaks, and white space. - Do the headings tell the story?
- Are you consistent throughout entire brief?
- Small Scale (Special Purpose) Editing
- Second Edit Completeness
- Does each argument go through all necessary
analytical steps? Are there flaws in the
analysis? - Have you tied all your arguments back to your
theme? - Does every argument tell the court what you want
them to do (at a minimum in a mini conclusion)?
39Brief Editing Techniques continued
- Third Edit Conciseness
- Read sentence by sentence Is each sentence
necessary and does the sentence advance the goal
of the paragraph? Can the sentence be worded
more simply? - Read paragraph by paragraph Is each paragraph
necessary and does it advance the goal of the
argument section? - Read section by section Does each section flow
together? Is there appropriate use of road
mapping and transitions? - Forth Edit Correctness in Grammar, Punctuation,
and Sentence Structure, and Typography (no typos
please) - Refer to Lauren Simpsons common errors handout
- Fifth Edit Correctness in Citation
- Placement and form
- Sixth Edit Compliance with the Rules
40Part 8 Summary of the Argument Information
in this section is adapted from Teresa Rambo and
Leanne Pflaum, Legal Writing by Design 422 et
seq. (2001).
- Moot Court Brief Writing Workshop
- Fall 2009
41Summary of the Argument Purpose
- The Summary of the Argument is a short,
affirmative description of the reasons detailed
in the Argument and Authorities Section that
support your clients view of the case - Include only the arguments favorable to your case
- Generally no more than 1-2 pages
- Objectives
- To familiarize the court with your clients case
- To concisely tell the court what it needs to know
to rule in your clients favor - To clearly request the relief that you want for
your client
42Summary of Argument - Structure
- The First Paragraph
- Begin with an introduction that provides context
and sets out the overall conclusion you want the
court to reach on the issue presented - Tell the court what the conflict is (what are the
issues) and how the conflict should be resolved - Sometimes called a summary within a summary
- Good place to set out your theme
43Summary of Argument - Structure
- The Middle Paragraphs
- Divide into sections that correspond to the
issues presented for review - Include one (or two) paragraphs for each argument
supporting each issue - Follow the same order as the argument and
authorities section - Provide only enough information for the court to
agree with your conclusions - Highlight/Summarize the ReA
- Paraphrase governing law and the most important
rules - Apply rules to decisive facts
- Explain briefly the reasons for your conclusion
- Include only the important points
44Summary of Argument - Structure
- The Last Paragraph
- tell the court what you want them to do the
court should find xyz and affirm, reverse, etc. - Be consistent with the conclusion/prayer
45Summary of Argument Tips
- Write the Summary so that it can be understood on
its own - Do not refer to cases, rules, or theories that
are not fully explained in the Argument and
Authorities section - The summary generally does not contain citations
to authorities or to the record - Exception when there is a crucial case or
statute that controls the analysis of the problem - The Summary is not just an abstract discussion of
the law you also have to relate the law to your
facts - Condense your argument Do not just repeat your
argument headings
46Exercise McMann
- Read the sample Summary of the Argument and
answer the following questions - What is the writers theme?
- How could you improve the existing theme? Or, if
you dont like the existing theme, what theme
would you use? - How can this summary of the argument be improved?
47Part 9 Opinions Below and Statement of The Case
- Moot Court Brief Writing Workshop
- Fall 2009
48Supreme Court Rules vs. Texas Rules
- TRAP Rule 38.1
- (d) Statement of the case. The brief must state
concisely the nature of the case (e.g., whether
it is a suit for damages, on a note, or involving
a murder prosecution), the course of proceedings,
and the trial court's disposition of the case.
The statement should be supported by record
references, should seldom exceed one-half page,
and should not discuss the facts. - (f) Statement of facts. The brief must state
concisely and without argument the facts
pertinent to the issues or points presented. In a
civil case, the court will accept as true the
facts stated unless another party contradicts
them. The statement must be supported by record
references. - Supreme Court Rule 24
- (d) Citations to the official and unofficial
reports of the opinions and orders entered in the
case by courts and administrative agencies. - (g) A concise statement of the case, setting out
the facts material to the consideration of the
questions presented, with appropriate references
to the joint appendix, e. g., App. 12, or to the
record, e. g., Record 12.
49Opinions Below Example
- OPINIONS BELOW
- The opinion of the United States District Court
for the Eastern District of Jackson is unreported
and appears in the record at pages 1-6. The
opinion of the United States Court of Appeals for
the Thirteenth Circuit is similarly unreported
and appears in the record at pages 7-12.
50Statement of the Case (i.e., the facts) Supreme
Court
- Present without argument, but not neutrally
- NO Citations to Authority
- MUST Reference the Record
- Only include facts that are legally significant
to the issue(s) on appeal - Some emotionally significant and background facts
can be used to give the court context - Deal with both good and bad facts
51Part 10 The Argument Section
- Moot Court Brief Writing Workshop
- Fall 2009
52Standard of Review
- Include a reference and citation to the standard
of review - Generally at or near the beginning of Argument
- If the standard is favorable to your client, you
may choose to incorporate it in your Questions
Presented and reiterate the standard throughout
your brief. - Dont include information
- about the kitchen sink
- when your issue only
- involves the bathroom.
53Example (may be too much)
- Motions for summary judgment are reviewed de
novo. A de novo review means the court should
apply the same summary judgment standard applied
by the trial court. In a traditional summary
judgment case, that means the issue on appeal is
whether the movant met the summary judgment
burden by establishing that no genuine issue of
material fact exists and that the movant is
entitled to judgment as a matter of law. The
burden of proof is on the movant, and all doubts
about the existence of a genuine issue of
material fact are resolved against the movant. A
defendant who conclusively negates at least one
essential element of a cause of action is
entitled to summary judgment on that claim. Once
the defendant produces sufficient evidence to
establish the right to summary judgment, the
burden shifts to the plaintiff to come forward
with competent controverting evidence raising a
genuine issue of material fact with regard to the
element challenged by the defendant. When
reviewing a summary judgment, the court should
take as true all evidence favorable to the
nonmovant, and indulge every reasonable inference
and resolve any doubts in the nonmovant's favor.
Evidence that favors the movant's position will
not be considered unless it is uncontroverted.
54Nine Ways to Improve Your Appellate Brief
Argument Section
- At every appropriate place in the brief, tell the
court what it should do and why - Thesis and Mini-Thesis Paragraphs
- There should be a main thesis paragraph at the
very beginning of your argument section that
relates to your entire issue - There should be mini thesis paragraphs at the
beginning of each argument supporting the issue - Mini Conclusions and the Conclusion
55Thesis/Roadmap Paragraphs
- Main thesis paragraph laying out the issue,
giving a a roadmap of the three major arguments
supporting your position on the issue, and
telling the court what you want them to do. - I. First Issue Presented for Review
- Mini-thesis paragraph giving any introductory
material relevant to the argument as a whole and
a roadmap foreshadowing A, B, C - If there is only one issue for review, the main
thesis paragraph can come here - A. Mini conclusion at the end
- B. Mini thesis paragraph giving any
introductory material relevant to B as a whole
and a roadmap foreshadowing 1 2 - 1.
- 2. Mini conclusion at the end
- C. Mini conclusion at the end
56Nine Ways to Improve Your Appellate Brief
Argument Section
- Present the law and the cases in the light most
favorable to your client - DO NOT misstate the rule, quote the rule out of
context, or mislead the court in any way - DO Present rules broadly or narrowly, suggest
the conclusion the court should reach regarding
those rules, and emphasis or de-emphasize the
burden of proof
57Objective Statement of the Rule (BAD)
- To determine if a Batson violation has occurred,
the courts engage in a three-step analysis.
First, the defendant must make out a prima facie
case by showing that the totality of the
relevant facts gives rise to an iference of
discriminatory purpose. Cite. Second, if the
defendant has made out a prima facie case, the
burden shifts to the Government to explain
adequately the racial exclusion by offering
permissible race-neutral justifications for the
strikes. Cite. Third, if a race-neutral
explanation is tendered, the trial court must
then decide whether the opponent of the strike
has proved purposeful racial discrimination.
Cite.
58Revision from Appellants point of view
- For more than a century, the United States
Supreme Court has consistently and repeatedly
reaffirmed that racial discrimination by the
State in jury selection offends the Equal
Protection Clause. Cite. Racial discrimination
in jury selection denied defendants their right
to a jury trial, denies jurors the right to
participate in public life and undermines public
confidence in the fairness of our justice system.
Cite. Therefore, the Constitution forbids
striking even a single prospective juror for a
discriminatory purpose. Cite. - In Batson, the Court developed a three-step test
to uncover discrimination masked by peremptory
challenges. Cite. Under the first step of the
test, the defendant need only establish a prima
facie case of purposeful discrimination by
showing . Cite. Once the defendant establishes
a prima facie case, the burden shifts to the
government .
59Nine Ways to Improve Your Appellate Brief
Argument Section
- Connect the dots make your entire argument in
the brief - Just because you have given the reader the legal
rule or the facts to make an argument, you cannot
expect the reader to discern the argument. You
must actually make it for him. - Set out an assertion, connect the assertion to
the rule, when analogizing and distinguishing
cases tell why the facts and holding of those
cases are similar or different that yours and why
the support your assertion. - Give all the detail the reader will need to
understand the connection you are trying to make - Use topic sentences
- Use transitions (for example, in addition, and,
but, etc.) to make clear how the information in
one sentence relates to another, use a looping
technique for key terms.
60Nine Ways to Improve Your Appellate Brief
Argument Section
- Dont repeat the other sides arguments instead
merely state your clients position on the issue - Dont say, Appellant will argue that a
comparative analysis if jurors struck and those
remaining is a well-established tool for
exploring the possibility that facially
race-neutral reasons are a pretext for
discrimination. - Say, Furthermore, case law does not support the
notion that Batson is violated whenever
prospective jurors of different races provide
similar responses and one is excused but the
other is not.
61Nine Ways to Improve Your Appellate Brief
Argument Section
- Know the positives and negatives of your case and
be able to clearly articulate why, in spite of
the negatives, your client should win - Know your adversarys case
- Which arguments can you accept (you win anyway)
- Which arguments must be vigorously contested
- Try to lead with your strongest argument, refute
your adversary in the middle (after each argument
not in one section), and end powerfully - But recognize when a logical order dictates a
different result
62Nine Ways to Improve Your Appellate Brief
Argument Section
- Start any discussion of a case or other authority
with an explanation of how it helps you. - Watson does not apply here because the court did
not address whether the economic loss rule bars
the recovery of solely economic losses. - When discussing another case, discuss only facts
that you specifically relate to your case. - In a brief, you do not need to give a full
factual history of other cases. - When you do discuss the facts of another case,
explain how each fact relates to your case.
63Nine Ways to Improve Your Appellate Brief
Argument Section
- Remember you are always an advocate if any
paragraph in your brief is neutral, re-write it. - Know what you want the court to do and why
- It is okay to say you win under various rules,
but be specific regarding what rule you want the
court to apply/adopt - Know how the rule you are advocating for will
impact future cases