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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 2009

2
Eleven 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

3
Tips 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

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

6
Part 2 Parts of the Brief
  • Moot Court Brief Writing Workshop
  • Fall 2009

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 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.

10
Part 3 Theme
  • Moot Court Brief Writing Workshop
  • Fall 2009

11
Persuasive 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).

12
To 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

13
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?

14
Part 4 Headings
  • Moot Court Brief Writing Workshop
  • Fall 2009

15
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)

16
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 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

17
2. 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.

18
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.

19
Example 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.

20
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

21
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.

22
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.

23
Part 5 Table of Contents and Table of
Authorities
  • Moot Court Brief Writing Workshop
  • Fall 2009

24
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

25
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

26
Part 6 Questions/Issues Presented
  • Moot Court Brief Writing Workshop
  • Fall 2009

27
Questions 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?

28
Questions 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

29
Example 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.

30
Example 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?

31
Critique 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?

32
Example 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.

33
Exercise
  • Use McKethan vs. Addison to formulate your
    questions presented for review
  • Please exchange your work with a partner and
    critique your partners issue statements.

34
McKethan 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?

35
McKethan 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.

36
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?

37
Part 7 Editing
  • Moot Court Brief Writing Workshop
  • Fall 2009

38
Brief 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)?

39
Brief 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

40
Part 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

41
Summary 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

42
Summary 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

43
Summary 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

44
Summary 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

45
Summary 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

46
Exercise 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?

47
Part 9 Opinions Below and Statement of The Case
  • Moot Court Brief Writing Workshop
  • Fall 2009

48
Supreme 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.

49
Opinions 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.

50
Statement 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

51
Part 10 The Argument Section
  • Moot Court Brief Writing Workshop
  • Fall 2009

52
Standard 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.

53
Example (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.

54
Nine 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

55
Thesis/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

56
Nine 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

57
Objective 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.

58
Revision 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 .

59
Nine 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.

60
Nine 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.

61
Nine 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

62
Nine 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.

63
Nine 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
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