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Chapter 18: Brief Writing
Learning Objectives
• Discover methods for preparing trial briefs
• Review formatting and procedural requirements
• Explain the components of the trial brief
• Examine how best to incorporate facts and law into trial briefs
• Explore the role of the paralegal in trial briefs
Outline
Section 18.1: Preparing to Draft the Trial Brief
Section 18.2: Formatting and Procedural Requirements
Section 18.3: Components of the Trial Brief
Section 18.4: Stating the Facts and the Law
Section 18.5: Role of the Paralegal in Trial Briefs
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Introduction
Briefs, or memoranda, are documents which provide the court with analysis of a specific argu-
ment, in order to support a motion for relief or to summarize issues before trial. In this context,
memoranda are not interchangeable with an internal memorandum, typically used for internal law
firm exploration and analysis of specific issues. Briefs and memoranda are utilized for a number of
purposes in the law. The terms “brief” and “memorandum” are often used interchangeably.
While briefs vary in content and goals, their structure tends to follow a specific format, which in-
cludes the caption and title, a statement of facts, a question presented and brief answer, analysis,
and conclusion. Understanding format requirements is integral to drafting briefs or memoranda.
This understanding is the starting point, for skill development, in this area. From there, attention
is focused on the build out of each component. This is where prior learning, including legal re-
search, legal writing, and citing, will be showcased.
Memoranda are used to support virtually all but the simplest motions. Court rules often limit their
length, and the general consensus is that briefs and memoranda should be sufficiently thorough,
but also concise. Striking that balance is important, and is a skill that evolves with practice. Briefs
and memoranda include only facts and laws which are relevant, and must be clearly laid out for
readability and ease of understanding. Memoranda include citations to laws and rules which sup-
port the presented arguments and requested relief. This authority should be primary, binding au-
thority in the jurisdiction unless the issue is one of first impression. First impression issues are the
exception, not the norm.
In this Chapter, we will examine the structure and goals of trial briefs and motion memoranda. We
will examine why and how these documents are used, and the relevant laws and rules that apply to
them. We will address each component, and conclude with a discussion addressing the role of the
paralegal in researching and drafting trial briefs.
Section 18.1: Preparing to Draft the Trial Brief
What is a Trial Brief?
They say that while cases can be over-litigated, they can never be over-prepared. The trial brief is
the reflection of this preparation and serves as a means by which a client’s position can be present-
ed to the court in written format. A trial brief is a document submitted to the court in anticipation
of trial which lays out facts, legal issues, and the argument in a clear and concise manner.
The terms “brief” and “memorandum” are sometimes used interchangeably, but for the purposes
of this Chapter we define these documents as follows: A motion memorandum is a supporting doc-
ument submitted with a motion which clearly lays out the issue presented in the memorandum with
relevant facts, a legal analysis, and an argument in favor of, or opposed to the ruling sought by the
motion. A trial brief, on the other hand, is similar to a motion memorandum in structure and pur-
pose. However, as opposed to addressing a single, narrow issue, the trial brief covers all issues to be
resolved at trial. The processes and strategies discussed here can be used for trial briefs and/or mo-
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tion memoranda. Also, note that the pro-
cess followed for researching and drafting KEY TAKEAWAYS
the trial brief are similar to those used in the
appellate brief, discussed in the next chap-
ter. Trial Briefs and Motion Memoranda
Trial briefs and/or motion memoranda are While the terms “brief” and “memorandum”
not always required in every case, or with are often used interchangeably, for the
every motion. Trial brief requirements are purposes of this Chapter they are used as
usually addressed in local rules, as will be follows: A trial brief is a document submitted
discussed later in the Chapter. For small before trial which summarizes issues in
cases and/or simple motions, briefs/ dispute. A motion memorandum is a
memoranda may not be necessary. Howev- thorough document with facts, law, and
er, they are a useful tool which should be
used whenever possible. Given the frequen- analysis to support a motion.
cy with which they are incorporated into the
trial process, it is crucial that you understand these documents, and that you are able to prepare for
and draft them as requested.
In this Chapter, information will be provided
addressing to how to prepare documents
which can be used either for supporting mo-
tions (e.g. a motion for summary judgment,
or a motion in limine), or for trial briefs sub-
PARALEGAL PERSPECTIVE mitted before trial. If a certain instruction
applies to only one and not the other (such
When conducting research, you should also look as the fact that a motion memorandum must
for secondary sources drafted by judges which correlate to the relief requested in the ac-
can give insight as to judicial preferences in terms companying motion), that fact will be speci-
of trial briefs and other documents. As an fied. Generally speaking, the information in
example, see this article written by a judge for the this Chapter will instruct you as to how to
Orange County Bar Association which discusses draft substantive memos and briefs used in
his personal preferences for trial briefs. the trial to support arguments and to pro-
vide information to the court to be used in
ruling on the matters in a case.
How are Trial Briefs Used?
Trial briefs are used to provide a written summary of the
issues to be addressed at trial. A trial brief is an excellent
device for presenting arguments in a clear fashion, which
can be helpful given that some attorneys are not as strong
when making arguments verbally at trial as they are in writ-
ten briefs. In addition, it provides the judge with the oppor-
tunity to review case law and statutes in advance of the trial,
making him or her more prepared, and hopefully more re-
ceptive, when those arguments are presented at trial.
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During the course of litigation, the time spent leading up to trial is much longer than the trial itself.
Given the short amount of time spent conducting the trial itself, waiting to discuss pertinent cases
and laws until the trial begins makes little sense. Citing, and explaining, case law in a trial brief al-
lows the writer to spend time flushing out
issues which could get overlooked during the
oral argument portions of the trial. Therefore, WHAT WOULD
if case law truly supports the client’s position,
referencing those judicial opinions in a trial YOU DO?
brief makes it much more likely that the cases
will be considered, and the application to
provide insight into the basis for ruling direc- When starting your first job, you re-
tion well-understood. view some earlier-submitted trial
briefs for inspiration for your own
Motion memoranda are used for generally the work. To your surprise, you find doc-
same purposes – to expand upon an argu- uments which do not follow a clear
ment and to present supporting law and facts structure and which contain numer-
as necessary. While a motion simply tells the ous errors. What should you do as far
court what you want, a supporting memo as structure for your drafting assign-
provides the opportunity to explain to the
court why your motion should be granted. It ments going forward?
is important to understand why some mo-
tions do not require a memorandum. A key
area of consideration in this line drawing is simplicity versus complexity. For example, if your attor-
ney cannot make a scheduled court date and seeks to continue that date to the following week, a
simple motion to continue would not require a supporting memo. If, on the other hand, your legal
team is seeking to exclude a piece of evidence, or to dismiss a case, these are larger issues which
should (and often must) be supported by memorandum.
Gathering Information for the Trial Brief
The actual layout and components of the trial brief will be discussed in the following sections of
this Chapter. However, some universal rules should be followed in terms of gathering information
for trial briefs and memos. First, always follow the guidance of your assigning attorney in terms of
which arguments are to be made. Second, know your
deadlines and other rules. Third, know which materi-
als, if any, are to be attached to your brief or memo.
For example, some courts require attaching copies of
the cases and statutes cited in the brief. Finally, make
sure you have access to all factual information which
could potentially be relevant to any argument. For ex-
ample, you should never presume to be aware of all
facts relevant to a matter unless you have been in-
volved in all aspects of a case from the beginning.
Therefore, it is helpful to gather factual sources, such
as depositions, interview summaries, and documents and tangible items received as part of the dis-
covery process. A brief or memo which has been researched and/or drafted based upon incom-
plete facts is unlikely to be of much use, and can potentially adversely impact an argument by pre-
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senting incomplete or unreliable versions of the facts. Depending on the level of culpability for the
errors, if perceived as an effort to intentionally mislead the court, the implications can be even
more severe.
Section 18.2: Formatting
and Procedural
Requirements
CAREER CONNECTION
Rules Governing Trial Briefs
There is no rule, in either the federal rules of civil
procedure or the Florida rules of civil procedure,
which directly addresses trial briefs and their require- Following the rules for specific
ments and deadlines. Instead, the terms and dead- courtrooms, and ensuring your
lines for the trial brief schedule in each case will assigning attorney is aware of those
come from the pre-trial order, which arises from the rules, will be some of your
pre-trial conference. The pre-trial conference is gov- responsibilities as a paralegal. As an
erned by Fed. R. Civ. P.16 and Fla. R. Civ. P 1.200. example of the information that the
rules can contain, explore this set of
The pre-trial conference is a meeting with the attor- Courtroom Guidelines for a court in
neys for all parties in which the case issues are nar- Orange County which provides a
rowed to those which are truly at issue for the court. thorough analysis of the processes
The pre-trial conference is also where a number of required of all litigants in this
pre-trial issues are addressed in order to streamline judge’s courtroom.
and simplify the trial process. Fed. R. Civ. P. 16(c)
outlines the list of topics which may be discussed at
a pre-trial conference, and 16(c)(7) includes “the need and schedule for filing and exchanging pre-
trial briefs” as one of those topics. The standard practice is that the issues resolved at a pre-trial
conference result in a pre-trial order, and that pre-trial order will discuss the due dates for the pre-
trial briefs.
KEY TERMS
The motion memorandum, which is the motion-
Motion for Summary Judgment based corollary of the trial brief (for the purposes of
reference throughout this Chapter with distinctions
A motion for summary judgment is an noted) is also not automatically required under fed-
effort by one side to prevail in a case eral or Florida rules. Recall that for the sake of clari-
(or a portion of a case) where the ma- ty, we are referring to motion-based legal memoran-
terial facts are not in dispute. This is da separately from a “trial brief”, which can refer to
one type of motion for which sup- an argument on all issues left for trial. However, for
porting memoranda are almost always the purposes of structuring an argument and other
submitted. There are rules for sum- drafting and procedural guidelines, the documents
mary judgment motions at the state are similar. More importantly, you should under-
and federal levels. stand that the terms “trial brief” and “memorandum
of law” or “legal memorandum” may be used inter-
changeably in the local rules, which is where you
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will find the majority of the information that you need
pertaining to these documents in terms of timing and
procedural parameters.
Local rules are rules which augment, or otherwise add
to, the Federal Rules of Civil Procedure or the Florida
Rules of Civil Procedure, depending upon your juris-
diction. It is here that you will find guidelines pertain-
ing to when trial briefs and motion memoranda are
necessary, and how and when they should be submit-
ted if required. The local rules can be different for each venue in which you practice, making it es-
sential that you read them and apply them to your paralegal work. Each court may modify the fed-
eral rules in different ways, which can determine whether a trial brief is required or permitted, and
when it is due.
Common Sense Rules and
Suggestions
While there may be no formal rule dictating
PARALEGAL PERSPECTIVE all trial briefs, there are common sense rules
which you should incorporate when drafting
and submitting your brief. For example, if
As discussed in this Chapter, the terms “trial the brief is not read, or is read but not under-
brief” and “memorandum” are sometimes used stood, then it will be of little value. One rea-
interchangeably. You should, therefore, be son for which a brief might not be read – or
prepared to see instructions which can be applied not read in its entirety – is if it is too long.
to either type of document posted in local rules. Sometimes local rules will dictate length. If
Also, remember that not all courts, even federal your rules do not specify a length, you should
courts, are the same when it comes to focus on what seems reasonable, based on
memorandum requirements. As an example, the complexity of the issue(s), the extent of
explore these rules from a federal court in Maine variation in legal direction, and the complexi-
which are quite detailed in terms of trial brief ty of the facts. Generally speaking, briefs
requirements.
over 50 pages are pushing the ability to keep
judges engaged in the brief. Most jurisdic-
tions which have length requirements specify
20 pages. With that said, even this length will be unnecessary if your trial brief is only addressing
one issue. A sound approach, as a baseline starting
point, is to spend 5–7 pages for each legal issue.
Another point of focus is structure. The compo-
nents of a trial brief will be explored in detail
throughout the Chapter. The point of using these
broken-down components is to make your brief
easy to read and to follow. This goal can become
more difficult as your trial brief increases in length.
The longer the brief, the more important the struc-
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ture. A best practice is to outline your brief before drafting it to ensure that your chosen approach
is logically sound, and is easy to follow. Ask yourself whether the case law that is cited and ana-
lyzed as part of issue B, for example, would be easy to find if a judge wanted to refer to it quickly.
If not, you should restructure your brief in order to make the sections clearer.
One way to clarify the arguments that you are
presenting in your trial brief is with section head-
ings within the argument/analysis portions of
your brief. Using section headings makes it easier
to follow your argument, thereby making your
brief easier to read. The easier that your brief is
to read and understand, the more likely that your
arguments will be considered by the court.
Another practical suggestion is to use simple,
clear language. Sometimes more technical lan-
guage is necessary, such as if you are describing complicated concepts with required complex
terms. However, most arguments can be made using language that anyone can understand, making
legalese and complex wording unnecessary. Given the need to make the brief as concise as possi-
ble, you should avoid using phrases with multiple terms that mean the same thing, such as
“complete and total”. Also, don’t try to include issues which have already been litigated in the case,
as the extra language is unnecessary, and the trial brief is the improper vehicle for seeking reconsid-
eration of earlier issues.
Procedural Requirements
NOTABLE & A discussion of procedural requirements will vir-
tually always begin with an examination of the lo-
QUOTEABLE cal rules. For example, you often need to concern
yourself with more than just the length of the
brief. Many jurisdictions have not only format and
“There are two things wrong with almost all page limits, but also page size, paper quality, font
legal writing. One is its style. The other is its and type size for hard copy filings. eFilings could
content.” potentially have different requirements. Always
follow those rules, and never presume that re-
Fred Rodell (1907-1980) quirements are the same across the board, even
for neighboring courts. Also, some jurisdictions
explicitly state the types of motions that require
supporting memos, and which do not carry that
“Writing is hard work. A clear sentence is no
accident. Very few sentences come out right requirement. You do not want to attach a memo
the first time, or even the third time. in support of a motion for which memos have
Remember this in moments of despair. If you been excluded by local rules (or vice versa).
find that writing is hard, it's because it is hard.
It's one of the hardest things that people do.” Speaking of a motion memorandum, remember
the role of this document. It is intended to sup-
– William Zinsser
port and justify the relief sought in your motion.
Because of that connection, the memorandum
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itself must align with the motion. So, if your motion requests a specific type of relief, your support-
ing memorandum should not include information
or arguments that do not comport with that re-
NEWS IN MOTION
quested relief. In other words, you cannot use a
memorandum to “sneak in” other arguments or
When drafting and researching briefs, using information which is not relevant to the relief re-
modern technologies such as YouTube can quested in the motion. This urge most often arises
be a helpful way to learn about legal writing. when you discover that your supporting memoran-
dum is shorter than the maximum length, tempting
As an example, here is a helpful video on ten you to fill that space with additional information.
things that a writer should not do when In practice, however, the judge would rather see a
drafting a brief. shorter memo which stays on point than one
which tries to incorporate extraneous facts or argu-
ments.
Also, your motion memorandum should almost always be submitted along with your motion, ex-
cept in emergency circumstances. Again, the local rules will provide guidance as to this point, but
most courts reserve the right to rule upon your motion at any time. Therefore, you do not want to
submit a motion and then work on a supporting memorandum, only to have the court dismiss your
motion in the interim before you’ve had a chance to fully state your arguments.
Motion memoranda are filed with most
motions submitted to the court, except for KEY TERMS
smaller/simpler motions such as for con-
tinuances or to withdraw/substitute coun-
sel. In Chapter 17, you learned about some Motion Memorandum
of the most common motions submitted
during the pre-trial process, such as mo- A motion memorandum is a document sub-
tions for summary judgment, motions to mitted with a motion to support the relief sought
dismiss, motions to transfer venue, and in the motion. Not all motions require supportive
motions in limine. Each of these motions memoranda. These often include:
would typically include a supporting mem-
orandum that provides a basis for the relief • Motion for Continuance;
sought in the motion. As an example, here
is how a memorandum could be used to • Motion for Default Addressed to The
support a motion in limine: Court;
• Motion for Confirmation of Sale;
ABXYZ Products hired your employer to
defend it after one of its products injured a • Motion to Withdraw or Substitute Exhibits;
consumer. ABXYZ does not dispute that • Motion to Proceed Informa Pauperis;
the product was defective, and does not
dispute that the consumer (who is now the • Motion for Extension of Time in Which To
plaintiff) was injured. They also do not Complete Discovery
dispute that the injured plaintiff is no long-
er able to work. The only issue for trial is • Motion to Withdraw or Substitute Counsel
how much the plaintiff should be awarded
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Chapter 18: Brief Writing 388
for his future lost wages due to his inability to work. ABXYZ believes they should have to pay
plaintiff based upon how much money he had been earning in the years leading up to his injury.
He had been a part-time greeter at the local big box store, earning $10,000 per year. The plaintiff,
however, argues that the week before his accident he had bought a lawnmower and had plans to
mow people’s yards for $500 an hour, due to his great skills. He is seeking lost wages in the
amount of a million dollars per year.
Your attorney seeks to file a motion in limine which
prevents the plaintiff from making any mention of his PRACTICE ON POINT
planned landscaping business and his outrageous
profits. Under these circumstances, the motion in
limine would seek to prevent testimony by the plain- Scheduling information for trial briefs is
tiff or any of his witnesses as to plaintiff deserving often found in scheduling orders, which
lost wages as a landscaper. It would include a short are created during pre-trial conferences.
summary of relevant facts from the history of the For an example of a pre-trial order which is
case, as well as references to the plaintiff’s work his- similar to something you may see in one of
tory. The heart of the document would focus upon the cases to which you are assigned, click
the legal argument; in this case, it would likely include here.
case law as to when evidence should be excluded due
to being too speculative. The motion would conclude with a request that all references to his land-
scaping services be excluded.
If this motion was granted, it would greatly simplify the case and could actually lead to a settlement
and avoidance of trial altogether. Therefore, it is of great benefit to the client to draft and submit a
well-written memorandum which addresses the law related to excluding types of testimony, and
explains why caselaw dictates that this information
should be disallowed. The memorandum is the ve-
hicle by which a party presents the support for his/
her arguments.
Section 18.3:
Components of the Trial
Brief
As stated above, most jurisdictions do not have
rules which directly outline the components for trial briefs or memorandums. This makes sense,
given the wide variety of topics, lengths, etc. which can be addressed by these documents. Still,
there is a general sense of order which should be approached when drafting a brief or memo. Note
that it can be frustrating to try to fit all of these components within your length requirements;
therefore, it is often a good idea to outline your memo or brief before you begin writing. When
drafting your outline, make sure that you leave room for all of the following components.
Caption and Table of Contents
Your brief or memo should contain the same caption that has been used throughout the case, with
the names of the parties and case number, with the name of the court at the top of the first page.
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The title of the document will depend upon the
kind of document that you are supporting. For
HOT TOPICS trial briefs, the title may simply be “Trial Brief of
the Plaintiff” or something similar. For motion
memoranda, however, the title usually follows this
Motions in Limine format: “Memorandum in Support of Plaintiff’s
Motion for ____.” With that level of detail in the
Motions in limine are another ex-
ample of a motion which will often title, it is clear to which motion your memoran-
be accompanied by a supporting dum corresponds.
memorandum. For an interesting
discussion on motions in limine and A table of contents is not required for all memo-
their use in Florida Courts, see this randa. However, it can be extremely helpful for
article published by the Orange memos which include more than one issue or ar-
County Bar. gument. Most word processing software provides
tools that can be used to create a table of contents
automatically, which can be extremely helpful as
page numbers and section headings may need to
be changed as a document is edited. If you use this software, make sure that you know how to use
it properly and update it after you have finished your edits. Another potential component that of-
ten goes along with the table of contents is the table of authorities (TOA). The TOA is often only
used for longer documents, but, as always, you should follow local rules if they are applicable to
TOAs. The table of authorities is like the table of contents, but instead of page sections it lists au-
thorities found in your brief/memo and the corresponding pages on which they are cited. The ta-
ble of authorities will be discussed more thoroughly in the next chapter on appellate advocacy, giv-
en that the table of authorities is always required in appellate briefs.
Statement of Facts PRACTICE ON POINT
The Statement of Facts sets out the legally relevant
facts as well as important background information
necessary for ruling upon the case. The statement
of facts is usually the first section of your brief or Many courts publish their own supportive
memo, right after the caption and title. Sometimes, information about the importance and use
when facts are especially lengthy, a short introduc- of motions and supporting memoranda in
tory statement will be used just to give a quick local practice. You should research to see if
glimpse of the issues prior to the full factual expla- any of these documents exist for your
nation. More details on the statement of facts will jurisdiction. For example, here is a
be discussed in the next section of this Chapter. document on motion practice published by
the Circuit Court of the Fifth Judicial Circuit
Question Presented or Statement of in Marion County. This helpful document is
the Issue available on the court’s website.
The Question Presented, also known as the State-
ment of the Issue, is a short question at the beginning of the brief which informs the reader as to
which legal issue must be resolved by the court. It is followed by a section called the Brief Answer
which answers this question. The question presented is extremely specific, written narrowly to ap-
ply only to your case. Therefore, instead of saying “Can a company rescind a job offer to an appli-
cant after learning that the applicant is pregnant?”, a proper question presented would read, “Did
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Chapter 18: Brief Writing 390
Bentley Company violate Plaintiff Tali Cooper’s rights by rescinding an
offer of employment as a sales manager upon learning that she was
pregnant?” Note that, from a conversational perspective, a question
presented might sound a little strange. The reality is that your court is
not there to determine whether every job offer, made to any applicant,
cannot be rescinded without violating the applicant’s rights. The court,
in a case, is there to resolve only the question before it, and the question
in your case is limited to your facts. Therefore, your question presented
should be limited as well.
When this section of the
brief or memo is referred to as the “Issue Present- NOTABLE &
ed” as opposed to the “Question Presented”, you
may see the question itself listed as a statement as QUOTEABLE
opposed to being in the form of a question. For ex-
ample, you may see this section written as “Whether
the defendant violated the rights of the plaintiff by . “The secret to good writing is to use small
. . .” This is an acceptable method of presenting an words for big ideas, not to use big words for
issue to the court. To decide which approach is ap- small ideas.”
propriate for your memo or brief, it is suggested that
you review similar documents submitted by your ― Oliver Markus Malloy
attorney or legal team in this or earlier cases, to dis-
cern their preference. Questions are often preferred
by attorneys and judges as they lead to more grammatically-correct phrases.
A common mistake is to overlook the question present-
KEY TAKEAWAYS ed in order to spend more time focusing on the argu-
ment itself. But doing so can start your brief or memo
off on the wrong foot, and can result in a missed op-
portunity to clarify and simplify the issues for the read-
When drafting a brief or memo, keep the
following information that you have er. A well-drafted question presented will be informa-
tive, providing insight as to your client’s position on an
learned in other chapters in mind:
issue. It should be concise, but should also include
enough information to allow the reader to understand
Your research must be thorough, the concept being argued. In addition, the question
using primary sources when should not be self-serving, when possible. In other
possible.
words, the strongest questions presented are those
Binding authorities must be which would actually be acceptable to the other attor-
included in your argument, even if ney. A judge does not need to be persuaded by the
they do not support your position. question presented, but instead informed as to the issue
at hand.
Your presentation of the law and
facts should be clear and concise.
After the question presented comes the brief answer.
Remember to Shepardize your The brief answer answers the question with a Yes or a
sources and check for errors. No, followed, by a very quick explanation as to why.
Therefore, a sample brief answer to the question above
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would be: “Yes, Bentley Company violated Plaintiff Tali Cooper’s rights by rescinding her job offer
upon learning that she was pregnant, as the company’s actions constituted a violation of the Preg-
nancy Discrimination Act, to which Bentley Company is required to adhere.” You do not, of
course, want to try to pack the entirety of your argument into your brief answer, and most brief
answers will be shorter than this example. Also, note that some briefs and memos will contain
more than one question presented and brief answer. Under those circumstances, you should num-
ber your QPs and Bas appropriately, so that it is easy to see which question corresponds with each
answer. Remember, as with all aspects of a trial brief, structure is key.
Legal Analysis and Argument
The discussion or legal analysis section sets out a detailed analysis of the legal issue in your brief. It
constitutes the main portion of the brief, and is
where the true heart of your argument will be made. KEY TERMS
It is arguably also the most informative portion of
your brief, and is your opportunity to ensure that
the court understands your position on relevant case Motion in Limine
law and other authorities. Recognize that the analy-
sis section must contain both law and facts in order A motion in limine is used to prevent
to be effective. The bridge must be clear in applica- the introduction of improper evidence
tion, whether in alignment, or differentiation. In at trial. Motions in limine are a type of
other words, simply listing various laws will be of motion which is supported by a mem-
little assistance in your brief. Instead, you should orandum. In state cases, motions in
state the law, discuss how and why that law applies limine are governed by Florida Rule of
to your case, and what that indicates in terms of Civil Procedure 1.200(a)(6).
your argument. Details as to how legal analysis can
be used to your benefit in a trial brief will be dis-
cussed in the next section.
Relief Requested
Finally, your brief should end with a conclusion, or a “Relief Requested” section. This is the por-
tion of the brief in which you inform the court as to what outcome you wish to receive. For mo-
tion memoranda, the relief can be very spe-
cific, such as the exclusion of a piece of evi-
dence, and should align with the rule re-
quirements supported by legal analysis. For
trial briefs, the relief requested may be
broader in nature, such as a complete denial
of all of plaintiff’s claims. Remember, how-
ever, that the relief that you request must be
supported by the facts and analysis sections
of the brief. It can sometimes be helpful to
draft the conclusion first and work back-
wards, in order to ensure that you are draft-
ing your document with an end goal in mind. Never ask for relief which is outside the scope of
your memorandum, and do not overreach for relief which is not the subject of the type of docu-
ment you are drafting for review and submission to the court.
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Section 18.4: Stating the Facts and the Law
Without question, the legal analysis portion of your brief is the most important of all components.
Your analysis requires the use of proper facts and law to produce a coherent, persuasive argument.
The facts are the foundation upon which your legal analysis is built, around the question present-
ed. Therefore, you must determine which facts should be included, and incorporate those facts
into a type of “story” which presents your side without being too verbose. Here are some sugges-
tions as to how to choose and present your facts, how to choose your research, and how to com-
bine the two into a productive and persuasive argument.
Choosing Relevant Facts
All cases contain an inordinate amount of
facts, some of them relevant, and most of
them not. In addition, the facts that you
ETHICS CHECK present should never be speculative. That is,
you should have a source of support for
every fact that you list. In looking ahead,
As with all documents to be submitted to the court, when you learn about appellate briefs in the
you must always follow ethics standards when drafting next chapter, you will discover that every
trial briefs and motion memoranda, which includes factual statement must have a correspond-
ing reference to the court record. While
✓ Never suggesting that a case stands for a such references are not always possible at
proposition it does not. the trial court level, you still must be pre-
pared to support every fact that you include.
✓ Never suggesting that facts are uncontested
if they are, in fact, contested by the other Before even determining how best to pre-
party. sent facts, you must determine which facts
to include, which requires deciding which
✓ Never using a memo or brief to try to facts are both relevant and supportable. Note
introduce facts which have been excluded. that in terms of relevancy, you should only
include those facts which are central to the
argument you are making. So, unless you
are drafting a trial brief, it is unlikely that
you will need to include all of the facts from
the case.
In addition, whether you are drafting a trial brief or motion memorandum, you should never in-
clude facts which have been excluded or otherwise decided
in a ruling not in your favor. Think about the argument
that you are making, and determine what facts a judge
would need to know in order to make an informed ruling
on the argument. As always, remember that brevity is key;
therefore, including irrelevant or unnecessary facts does
nothing to advance your argument.
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393 Chapter 18: Brief Writing
Fact Presentation KEY TERMS
Now that you determined which facts are relevant
and should be included in your argument, the next
decision is how best to present those facts. First, Predictive and Persuasive Writing
note that as important as the legal analysis is to the
brief, this does not mean that the facts section Recall the difference between predic-
should be overlooked in terms of attention to detail. tive and persuasive writing explored in
The fact presentation necessitates your time and the Program. Predictive writing is used
focus. Your fact presentation, as one of the first for internal documents and predicts
parts of your brief, should grab the judge’s atten- how a court will rule on an issue. Per-
tion. While you cannot and should not include irrel-
evant facts “for show,” there is no reason that you suasive writing attempts to persuade
cannot present facts in a compelling way. You want the reader to accept the writer’s argu-
the judge to be intrigued and seeking to know more. ment as to a legal issue. Trial briefs
You also want to make the story a human one, if and memos are examples of persua-
possible, which makes your client and case appear sive writing.
to be on “the right side.” These suggestions, howev-
er, should be considered while being mindful that your information must still be relevant, and not
include unnecessary language or exaggerations. Admittedly,
it is a challenging line to walk. However, with practice, your
skills at drafting factual statements will improve.
Finally, note that your presentation should not attempt to
make contested facts appear uncontested. In other words,
you should not make factual statements unless they are un-
contested, or unless you note that they are disputed. For
example, you should not say, “The defendant then deliber-
ately and willfully hit the plaintiff with his car.” Instead, if
your client’s position is that the defendant’s
actions were intentional but the defendant
denies that position, you should use other WHAT WOULD
facts to support your presumption and allow YOU DO?
the judge to reach his or her own conclu-
sion. For example: “On May 21, defendant
emailed plaintiff, saying “If I ever see you in You have been tasked with reviewing a
public, I’m going to hit you with my car. The memorandum which has been drafted
following day, the defendant did, in fact, hit by a coworker. In it, you find that the
plaintiff with his car as plaintiff was crossing
the street. Defendant was cited by the police argument is largely based upon a case
for, among other actions, driving through a which has been overturned. The memo-
red light at the time he struck the plaintiff.” randum is due tomorrow. Do you bring
In this way, you are presenting facts which the issue to the attention of the cowork-
lead the judge towards a conclusion, but er? If you do, and the coworker refuses
which do not use uncontested or irrelevant to notify the attorney, do you tell the
facts to do so. attorney yourself?
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Incorporating Legal Research into Trial Brief
The type of legal sources that should be used in your brief will change depending upon the argu-
ment you seek to make. The most common types of legal authorities used in trial briefs and mem-
oranda are statutes, case law, and rules.
There are some standard guidelines that
should be followed regardless of the topic
of your brief or memorandum. For exam-
ple, you should always use primary sources
as opposed to secondary sources when pos-
sible. The primary authority should be bind- PARALEGAL PERSPECTIVE
ing, if binding authority is on point. Primary
authority carries more weight than second-
ary sources, even if the primary authority in The Interaction between IRAC and
question is not binding upon your court. In Trial Brief Structure
addition, if a binding authority exists on
your issue, it must be included in your docu- In Chapter 7, you learned about IRAC, which
ment. That holds true whether it supports stands for Issue, Rule, Analysis, and Conclusion.
your position or could potentially weaken This structure is used in legal briefs, although
your position. If the ruling is in opposition the components themselves are broken into
to the ruling you are seeking, and there is a separate sections. The issue is the Question
basis to explain the difference in application,
the case should be included, and distin- Presented, the Rule is the laws that you state in
guished. While this requirement may at first the brief, the Analysis is the argument portion
seem frustrating, it should be used as an op- of your brief, and the Conclusion is the end of
portunity to differentiate your case from this your brief. Paralegals should keep this system in
precedent, as the opposing legal team is al- mind when drafting briefs and memoranda.
most certain to include this case in their
own arguments.
Another important consideration is the type of legal arguments which must be made in your brief.
For example, for some standard-type motions (e.g. motions to dismiss, motions for summary judg-
ment), many legal components will remain the same from motion to motion, including the applica-
ble rules, etc. Individual case law and statutes, however,
may change. So, your trial brief or memorandum is likely
to include a combination of “standard” and “specific”
laws. For example, if the case involves a contract dispute,
you may have a legal reference to the requirements of a
contract. This same source could be used in most any
argument related to establishing a contract. However,
you should also have specific sources which apply to the
facts of your case, in order to strengthen your argument.
Speaking of strengthening your argument, including mul-
tiple cases which stand for the same proposition is un-
likely to accomplish this goal. While a string of multiple citations might look helpful, in reality, the
court only needs one recent, strong case in support of a proposition in order to get your argument
across.
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395 Chapter 18: Brief Writing
Remember that any source you include in your brief or memo must include a valid citation in the
required format. Other than the citation and the holding of the case, however, there are no hard as
fast rules as to how much information should be included about the case. For example, should you
quote the case directly, or just summarize it?
Should you list the facts of the case, or just the
conclusion? Unfortunately, there is no definitive NOTABLE &
rule – you will have to make those decisions on a
case-by-case basis, and this practice, like most oth- QUOTEABLE
ers, will become easier with time. Usually, a sound
approach is to include as much information about
the case as is necessary to understand its im- “Grasp the subject, the words will follow.”
portance to your argument. That means bridging
the parallels and/or distinctions, with focus on – Cato the Elder (234-149 BC)
legally relevant facts and the law. In addition, the
more important the case to your argument, the “Writing is REwriting.”
more detailed its description should be.
– Robert L. Kelley
Legal Analysis and Argument
Once you have decided on the facts to include in “If you can’t explain it simply, you don’t
your brief, presented the facts, and decided upon understand it well enough.”
the appropriate laws to present, you must com-
bine these components into a legal analysis. First,
consider the facts. There is, of course, a specific – Albert Einstein (1879-1955)
portion of your brief dedicated to the facts; there-
fore, you do not need to restate them in their en-
tirety in the analysis portion. You should, however, restate facts as appropriate in order for your
argument to make sense.
For example, if your facts included a statement that a verbal promise was made between two par-
ties, and your law points out that a contract can be verbal, your analysis could say something to the
effect of, “Therefore, by making a verbal promise to plaintiff, defendant was establishing a legally-
binding contract.” In this way, you are re-stating facts which
were previously stated, but only for the purpose of making
your argument clear. Without the inclusion of relevant facts,
you would simply be listing laws and rules and hoping that
the court would apply those laws to the facts of the case on
its own. This is a presumption that you should never make.
While you do not want to belabor a point, you also do not
want to leave anything to chance.
Another point to remember is that you should never include facts in your analysis section which
were not listed in your Facts section. Therefore, it is often a good idea to re-read your analysis to
ensure all of the facts that you include are not appearing in this section for the first time in your
brief. None of the facts listed in your analysis section should be a surprise. A well-written brief will
be easy to follow, as you lead the reader from one point to the next.
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CAREER CONNECTION
The roles of paralegals in trial brief work can be multi-faceted. Some firms use
paralegals simply for organizational roles, such as maintaining case files and
calendars. Others use them for research, while the attorney will draft the legal
documents based upon that research. Others use paralegals to assist them with
both the research and writing processes. Generally, the better your performance on
case work, the more responsibility you are likely to be given.
Be sure to remember the importance of section headings. You should divide your argument into
as many sections as necessary. For most briefs, you will accomplish this using an outline style,
meaning with Roman numerals and upper and lowercase letters. When deciding whether an argu-
ment should be moved to its own section, err on the
side of caution as much as possible and insert a new
section heading. Imagine if a judge wanted to find one
particular argument in your brief. Your section head-
ings should allow the judge to do so quickly and easi-
ly.
Finally, the section headings which break up your ar-
gument should be specific, as lengthy as necessary to
explain your topic (although not more than one sentence), and should be clear enough to under-
stand quickly what information will
follow. An example of a section
heading would be “Bentley Company
HOT TOPICS is subject to the Pregnancy Discrimi-
nation Act.” Note that for simpler
issues, your memorandum may only
Brief Writing Software
contain a single argument; however,
Some companies, including Lexis and in most cases, section headings to
Westlaw, offer programs which assist separate portions of your analysis will
with brief-writing processes. As technolo- be appropriate.
gies advance, the likelihood of using one
of these programs increases. Regardless Section 18.5: Role
of these advances, however, it is im- of the Paralegal
portant to understand how to write a in Trial Briefs
brief from scratch, as not all employers
provide such programs.
Now that you have learned about
trial briefs, you may be wondering
what your role will be in this process.
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397 Chapter 18: Brief Writing
Your role will depend upon a number of fac-
tors, including size of the firm, your level of
experience, and your research and writing
skills. Generally speaking, the more work you
can take on to help your assigning attorney
with workload, the more essential you will be
to your legal team. Perfecting these skills will
increase your likelihood of playing larger roles
in the litigation process. Here are some exam- CASE CONNECTION
ples of responsibilities which are often as-
signed to paralegals with respect to trial briefs.
Researching the Rules
One of the most important jobs when it
comes to trial briefs – and one that is most
often assigned to paralegals – is researching For non-legal professionals, it can
the rules. This will include everything from appear as if most of the work of a case
the rules of procedure (federal or state) to lo- is handled during the trial. Once you
cal rules. First, research the due dates for the begin your work as a paralegal,
submission of trial briefs and memos. For trial however, you will discover that much
briefs, this information is likely to come from of the heavy lifting associated with
the scheduling order. For other briefs and
memos, you may find rules which state re- litigation takes place via pre-trial
quirements such as submitting a memo at least motions. This is especially true for
three (3) or even ten (10) days prior to a hear- arguments with respect to evidence
ing. Also, note that if you are on the side of a which should be admitted at trial. The
case which is responding to a motion, the due famous O.J. Simpson case, for
date of your response may depend upon the example, demonstrated the effect of
date which the other side’s motion was sub- arguments over the admissibility and
mitted. Knowing the due dates for your docu- weight of evidence, especially DNA
ments is crucial, and must be discovered as evidence. For a review of the role that
early as possible. DNA evidence played in this case, click
here.
Second, research whether memoranda are per-
mitted/required for the motion your side is
submitting (memoranda are usually permitted for all but the simplest motions). If a memo is per-
mitted or required, you should look for information such as page limit requirements, font, margins,
and paper type. You should also research eFiling require-
ments, if applicable. Remember that some courts refer to mo-
tion memoranda and trial briefs using varying terms; there-
fore, it is important to read the rules thoroughly to ensure
compliance. For example, you cannot simply use the “find”
function for an electronic copy of the rules and search for the
term “trial brief”, as you may not find anything. When it
comes to briefs and memos, as with all aspects of the law, you
should never take shortcuts.
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Researching the Law
As with most aspects of a case, your role in terms of trial briefs and memos is likely to include le-
gal research. This may include researching the law pertinent to everything from filing requirements
and legal standards (in other words, research related
KEY TERMS to the brief/memo itself) or research related to your
case.
Motion Memorandum — A document Regardless of whether you are drafting the brief in
submitted in support of a motion dur- question, it is helpful to reference those points of
ing the course of trial. Most motions your research which are applicable to the brief. For
are either permitted or expected to be example, if you are presenting the findings of your
supported by memorandum, except research to your attorney via an internal or office
for simple or uncontested motions. memo, you should incorporate quotes or other im-
portant information from your research to make it
Trial Brief — Similar to a motion mem- simple to insert that information directly into the
orandum, except that it addresses all brief when it is drafted. Or, if time is of the essence
issues left to be resolved at trial as op- and you are not given the chance to draft an internal
posed to the issue of one motion. Both memo, you should highlight and/or tab the portions
documents follow the same general of the research which apply to your case. Keep in
format. mind that your ultimate goal is to assist the attorneys
working on the case; therefore, the more on-point
and easily accessible your research findings, the
more helpful your research will be. Always remember to Shepardize your sources and alert your
assigning attorneys to any new or underdeveloped areas of the law which may require additional
focus as part of the brief or memo.
When researching the law for
your trial brief, never forget to
research the rules of procedure.
While it is true that procedural
rules are often used for infor- ETHICS CHECK
mation such as timing and length
of briefs, they are also primary As a paralegal, you will frequently be tasked with filing
sources of authority in terms of documents with the court. As such, you are often one of the
burden of proof or other issues last members of a legal team to see a memo or brief before it
which apply to many trial briefs.
A motion for summary judgment, is submitted to the court. Your assigning attorney is likely to
for example, is based upon Rule ask you to conduct a final “check” of the brief before
56 of the Federal Rules of Civil submission. Always do so, even if you know that the
Procedure, or Rule 1.510 of the document has been repeatedly read and re-read. The client
Florida Rules of Civil Procedure. counts on your team to always give 100%, and you owe it to
These rules are likely to be cited the client to spend time checking, and re-checking the brief
extensively in your memorandum, before it is submitted.
and therefore must be examined
as part of your legal research
process.
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Writing and Revising
As a paralegal, you may or may not be in-
volved in the actual drafting and/or revising
of the brief. Your role in terms of writing will
depend upon the size of your firm, your level
of experience, and your writing skills. Howev-
CASE CONNECTION er, you should always strive for the goal of
drafting briefs, as it is one of the most im-
portant aspects of the litigation process, and
your assistance in this process can be of great
value to any attorney. To work toward this
goal, study the writing process with respect to
briefs in order to increase your chances of be-
Earlier in this chapter, a motion for ing trusted with this responsibility.
limine was explained using a factual
scenario in which the plaintiff was When beginning the drafting process for a
seeking lost wages due to a business larger project such as a memo or brief, you
that he had “intended to start” if not may have trouble deciding where to start. A
for his accident. detailed outline can help, and can also allow
you to avoid having page length issues, as you
This situation does arise often in injury can see a breakdown of your arguments be-
cases, and can provide opportunities fore you begin. Another option is to begin
for filing motions in limine or other pre with the conclusion, or with some other point
-trial motions. For an example of a in the memo rather than drafting from start to
case in which the plaintiff claimed he finish in s linear progression. Some writers
was about to start a scuba diving find it helpful to make flowcharts or other
business in Belize, and to see how the visual sources of information in order to help
court handled this argument, read this to put multiple arguments in context.
article from the Huffington Post.
You should also keep in mind that you will
need to leave a lot of time for revisions and additions. In fact, most writers underestimate the
amount of time that it will take to make changes. This is especially true as a paralegal who will be
submitting drafts to an attorney for review. In addition
to the time needed for revisions, you should also allow
yourself time to step away from the draft, and return to it
after some time, to give yourself a better chance of catch-
ing errors. Make sure that your thoughts and arguments
are arranged logically. When looking at your arguments
laid out in one place, you may realize that you need to
rearrange portions, or even conduct additional research.
You will, of course, need to focus on grammar, spelling
and punctuation during the revision process. Re-read for
passive language and substitute with active language
where possible.
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Motion memoranda and
trial briefs are central com-
NOTABLE & QUOTEABLE ponents to the litigation
process, and paralegals
“I'm writing a first draft and reminding myself that I'm simply shoveling play a major role in their
sand into a box so that later I can build castles.” research, construction, and
drafting. By focusing on
― Shannon Hale
your writing skills, examin-
“When you write a book, you spend day after day scanning and ing similar documents, and
identifying the trees. When you’re done, you have to step back and reliably researching rules
look at the forest.” and law, you can cement
your position as an essen-
― Stephen King, On Writing: A Memoir of the Craft tial member of the legal
team.
Conclusion
The legal brief is a document which is provided to the court either in conjunction with a motion (a
motion memorandum) or immediately prior to trial (a trial brief). Motion memoranda are used
with all but the simplest motions during pre-trial. Memoranda provide support for the motion, in-
cluding legal analysis and properly cited authorities. Trial briefs are similar to motion memoranda
in structure, but are usually more complex in that they include all of the issues remaining for adju-
dication at trial. The terms “brief” and “memorandum” are sometimes used interchangeably. Un-
derstanding this context, and terminology, is important for paralegals because of the extensive use
of legal briefs in a multitude of different areas of the law, at the state and federal levels.
As a paralegal, you are likely to have a hand in researching and/or writing a variety of legal docu-
ments, including trial briefs and memos. Therefore, it is imperative to understand the structure and
how to convert a legal argument into a workable memorandum. Determining which facts are nec-
essary to support the motion, based on the rule standard and analysis, is a key starting point. Legal-
ly relevant facts that are supported should be included. Extraneous facts that are not necessary to
support the requested relief should not be included. The factual foundation must be built out to
serve as the basis for the legal analysis. There must be alignment between the facts, and any refer-
ence to facts in the analysis. You should be able to condense a set of facts into a compelling State-
ment of the Facts section, and to turn a legal issue into a strong Question Presented and Brief An-
swer. In addition, it is important to understand how best to break down an argument into sections
as part of a legal analysis.
The most important component of the brief writing process is the research phase. As a legal re-
searcher, you will be tasked with researching both procedural issues (such as when a brief is due,
the page requirements, etc.) as well as the legal question at the heart of your document. From
there, analysis is built out connecting legally relevant facts in the case with legal authority, bridging
application connections to show alignment, or explaining distinctions, to serve as the foundation
for the requested relief. By improving your research and writing skills, you will increase your
chances of being asked to draft briefs and memos for the benefit of the client.
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