Brief-Writing Masterclass

Brief-Writing Masterclass

by Chinua Asuzu

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Overview

An advocate submits a brief to a court or tribunal to persuade it to decide the cause or matter in favor of the advocate’s client or position. The key word is “persuade.” Too often, advocates forget this and write to please themselves. They write to themselves instead of to the court. They write in chest-thumping prose and style. Advocates will do well to keep in mind that in advocacy, persuasion is all that matters.

This book teaches persuasive written advocacy. It shows advocates—of all ranks, in all jurisdictions, in all proceedings, before all courts or tribunals—how to prepare and present winning and winsome arguments. Because of its emphasis on winning, the book’s pedagogy blends law, linguistics, logic, psychology, rhetoric, and semantics.

Product Details

ISBN-13: 9781482877991
Publisher: Partridge Africa
Publication date: 05/30/2017
Pages: 572
Product dimensions: 6.00(w) x 9.00(h) x 1.27(d)

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CHAPTER 1

The Architecture of Argument

1.1. Brief Etymology and Changing Meaning of 'Brief'
1.1 Brief Etymology and Changing Meaning of 'Brief'

Traditionally, in the advocacy context, the word brief means written argument submitted to an appellate court. This nomenclature is historically based. When written arguments were first required or even desired at all in litigation, they were restricted to ultimate courts — there, they're called 'briefs.' Then they were extended to intermediate appellate courts — here, they're called 'briefs.' It took decades after their introduction to ultimate and appellate courts for written arguments to be required or welcomed at trial courts. Here, they got an unnecessarily differentiated name — written addresses or written submissions, if interlocutory; and final (written) addresses if terminal.

Join me in dropping this linguistic differentiation. Let's assign the name of brief to all written arguments submitted to a court or tribunal, in interim, interlocutory, or substantive proceedings, at first instance or on appeal. Let's have not only appellate briefs, but also ADR briefs, motion briefs, and trial briefs. Your "written addresses" or "written submissions" in aid of applications to courts become motion briefs; and your "final (written) addresses" become trial briefs. Appellate briefs include the appellant's brief of argument, the respondent's brief of argument, and the reply brief. The first two are self-explanatory.

The last, the reply brief, is filed by the appellant when, upon service of the respondent's brief, the appellant feels the respondent's brief has raised new points requiring the appellant's reaction. So the reply brief is analogous to what we Nigerian lawyers call a reply on points of law in our motion practice. A reply brief enables "the appellant to articulate ... arguments on some new issues arising from the respondent's brief. A reply brief should not be used to strengthen or repeat the arguments already canvassed in the appellant's brief nor should it be a reiteration of [those] arguments." When the respondent's brief raises no new issues, a reply brief is unnecessary and undesirable. A reply brief should not itself introduce any new issues. Indeed, it should raise no issues. "A reply brief, as the name implies, must be a reply to the respondent's brief. ... A reply brief is not a forum for introducing or advancing fresh points . ... A reply brief must not contain ... issues for determination. A reply brief must not be independent of the main brief." A reply brief is unpopular with judges. A prudent advocate will therefore hesitate to file one.

An appellate brief aims "to persuade the appellate court to uphold or reverse the decision of the [lower] court." Each party's brief presents the issues from that party's perspective.

An advocate submits a brief to a court or tribunal to persuade it to decide the cause or matter in favor of the advocate's client or position. The key word is persuade. Too often, advocates forget this and write to please themselves. They write to themselves instead of to the court. They write in chest-thumping prose and style. Advocates will do well to keep in mind that in advocacy, persuasion is all that matters. Persuasion, not scholarship, is the test of successful advocacy. "Persuasion is the only test that counts. Literary style, massive displays of scholarship, citations that thunder from the ages, and catchy phrases are uniformly pointless if the writing does not persuade." Scholarship is great, but its value in advocacy is as an aid to persuasion.

Content is not all there is to persuasion. Form is vital. An essential element of form is organization or structure. You want to arrange your brief in as appealing a form as possible. You want to organize its contents to capture judicial attention and arrest judicial imagination.

Here I list the components of a brief in the order in which you should organize them to maximize your brief's persuasive potential on the form index:

• Cover Page and Contents

• Issues for Determination

• Introduction

• Facts and Procedural History

• The Argument

• Conclusion

• List of Authorities

Cover Page and Contents

Your brief should have a cover page, one not cluttered with detail. On the cover page, state the following:

• the name and division of the court (recommended point size 14: regular — ALL CAPS, centered, no boldface, no italics, no underlining);

• the appeal, docket, file, or suit number (recommended point size 10: regular — right-aligned, no boldface, no all caps, no italics, no underlining);

• the names of the parties (recommended point size 14: regular — left-aligned {with their procedural designations right-aligned}, no boldface, no all caps, no italics, no underlining);

• a descriptive title for the brief (recommended point size 16: boldface — centered, no all caps, no italics, no underlining); and

• your name, law firm, and contact information at the bottom right corner of the cover page (recommended point size 10: regular — right-aligned, no boldface, no all caps, no italics, no underlining).

The name and division of the court, centered in the usual format shown below, should be the only all-caps text in the whole brief.

IN THE HIGH COURT OF LAGOS STATE IN THE IKEJA JUDICIAL DIVISION SITTING AT IKEJA

Nothing in your whole document should be underlined.

The brief's title should be the most prominent information, in point size 16, and bold, but not all caps. Nothing else on the cover page should be bold. Nothing else should be larger than point size 14. The title should stand out in contrast to the rest of the information on the cover page. The title is the information the judge needs. The document is already inside a case-file, so the judge knows which case he or she is dealing with.

In the body of your brief, prefer point size 14. You should retain this point size even for headings and subheadings inside your brief. Use boldface font, not size, to emphasize your headings. But if you really want to contrast main headings from subheadings, you may use point size 14.5 for main headings and 14 for subheadings and the rest of your text.

Use title case (initial caps for the main words) for the brief's title. The title should state whose brief it is and what it relates to. If it's a trial brief, you need not specify what it relates to other than stating that it's your client's final address. Give as much detail as necessary in the title when it relates to a motion brief.

Don't use Arial, Baskerville, Bookman Old Style, Calibri, Cambria, Courier New, Tahoma, or Times New Roman in your legal writing. Why not? Thanks for asking. Well, Matthew Butterick, learned typographer, doesn't like them. Consider Book Antiqua, Century Schoolbook, Garamond, Gill Sans, and Helvetica. Butterick might tolerate those. Browse www. typographyforlawyers.com.

If your court rules insist on different fonts or point sizes, by all means follow your court rules and ignore my recommendations.

As soon as the judges buy into this (I'm talking to them already), or if you're bold, cold, gold, or old, add parties' names to their procedural designations like Appellant, Applicant, Claimant, Defendant, Petitioner, or Respondent. Then here's how you should state the brief's title on the cover page:

Claimant Prana's Brief on Defendant Quixote's Preliminary Objection

Claimant Chevron's Final Address

Defendant Dangote's Brief on Claimant Zingam's Application for Mandatory Injunction

Judgment Debtor Bosco's Briefon its Application for Stay of Execution

Appellant Eleganza's Brief

Respondent Swift Network's Brief

Appellant Sheraton's Reply Brief

Never confuse a reply brief with a respondent's brief. On appeal, the respondent files the respondent's brief after receiving the appellant's brief. A reply brief is filed by the side that served the opening brief. On appeal, the appellant files the reply brief, if necessary, after receiving the respondent's brief. At trial, whichever side filed the opening brief may file a reply brief after receiving the other side's brief. A reply brief is analogous to a reply on points of law in interlocutory contexts.

Of course, the cover page should not be numbered or paginated. The cover page should be followed by the table of contents, which may run into two, three, or even more pages, depending on the nature or complexity of your argument. Detailed tables of contents, with headings and subheadings, are always helpful. Persuasion starts from the table of contents. The table of contents tells the judge how serious and diligent an advocate you are. Paginate the table of contents in romanettes (lowercase Roman numerals): i, ii, iii, iv, etc, to contrast its pagination from the pagination of the substantive brief, which should be in Arabic numerals (1, 2, 3, 4, etc).

Your table of contents should do the following:

• list all the brief's components;

• include the point headings and subheadings you'll use in the argument section; and

• index its entries — point to the pages on which each begins.

A table of contents with argument-section headings and subheadings provides a coherent and persuasive outline of the argument and enables the reader to gain a grasp of the case theory. Title the table of contents Contents, notTable of Contents.

How do you prepare the table of contents? As you research and prepare to write a brief, note points you will need to make. List helpful authorities. Note good quotes you want to use. Then organize your notes. From those notes, draw up an outline. Preparing an outline "is the single best thing you can do to improve your written work. Not only does outlining help you get something on paper, but it also forces you to organize your thinking." Translate your outline into a fairly detailed table of contents. Your table of contents should show the major parts as well as the subparts of your brief, with appropriate headings and subheadings. Your argument section, in particular, should have subheadings (your point headings). Each point heading should deal with one major point in your brief, one main plank of your argument, or one issue. When your brief has a table of contents with point headings inserted under the argument section, you give the judge an early overview of the nature and direction of your legal argument.

Your table of contents should feature, as its first entry, the Issues for Determination. Unless you have just one issue, this should be broken down into subparts, each dealing with one issue — summarize the questions for determination in subheadings, preferably in question format. Follow the Issues for Determination with your Introduction. After the Introduction comes Facts, Procedural History, or Facts and Procedural History. Feel free to combine the facts section and procedural history when either is too short to merit a separate section. Sometimes the procedural history can be taken care of in one or two sentences. At other times, there may be few facts deserving narration, for example in briefs turning purely on law or procedure. When you combine the facts section with the procedural background, title it Facts and Procedural History. When you omit either entirely, title the surviving section Facts or Procedural History, as necessary. Next comes the Argument. The last substantive part of your table is the Conclusion. Then you close the table with a List of Authorities.

The table of contents is important for two reasons: (1) because it incorporates argument-section point headings, it provides an overview of and a roadmap to the whole argument; and (2) because it is indexed, it guides the court to specific parts of the brief as needed during decision-drafting. Your outlining and subdivision of the argument section should "show the judge, vividly and memorably, the points you have to make." That's why your table of contents should not stop at displaying the major sections of your brief, but should also outline your subdivision of the argument section into subheadings. Indeed, this is the critical phase of your outlining — it is in the argument section that you apply creativity and advocacy in planning and presentation.

Your point headings (and perhaps subheadings) under the argument part of the table of contents should "preview for the court the persuasive reasons behind your main points" and help the court later use the table to find key supporting arguments. This means that your table of contents, especially the part dealing with the argument, should be somewhat detailed. But your table should not be so detailed as to run into many pages, else the court will get the impression that your argument is complicated. An overly long and excessively detailed table, with many sub-topics and sub-sub-topics, will undermine persuasive potential. You will be more persuasive if your organization gives the court the impression that your argument is simple or straightforward. Four pages are not too long for a table of contents. If indeed the case is complicated, don't be afraid to reflect this in your outlining, which may legitimately take the table to five or more pages. This should be a rare case, and one in which your opponent and the judge would readily see that the case is indeed complicated.

Busy judges appreciate detailed tables of contents. Your table's argument section should "reveal the full argument, assertion by assertion. Your brief will become more skimmable. And in the weary eyes of a busy judge, that means a lot." The author of those words is a busy judge himself. Detailed tables of contents help not only the judicial reader but also you, the author. They help you "maintain focus and keep your goals in sight throughout the drafting process." This means that, ideally, you should prepare the table of contents before you start writing. This makes sense. During research and preparation, you should discern the main points of your argument before you begin to develop them. As you research and write, you may need to modify the table. You may expand it as more points spring to mind or are dictated by your research findings. You should discard weak points. For your major points, use complete-sentence point headings in sentence-case boldface, single-spaced. Each of your point headings should be at most 35 words in length.

Your table of contents should be a vision of clarity. It should be indexed — that is, it should point to the pages on which the listed contents occur. Your table of contents will look like this:

1. Issues for Determination

1.1 Summary of first issue in question format (e.g., Is this claim statute-barred?)

1.2 Summary of second issue in question format.

2. 2. Introduction

3. 3. Facts (and Procedural History)

4. 4. The Argument

4.1 Point heading answering first issue, possibly with sub-points (This claim is statute barred because ...).

4.2 Point heading addressing second issue.

5. Conclusion

• List of authorities

This is of course a general guide. Prefer this guide to your court rules if they differ from this guide — the judge won't mind. This is a close-enough approximation to any court rules and meets rhetorical expectations. Court rules on briefs are general guides to the structural organization of briefs. As an advocate, you must decide the most persuasive organization for each brief, and I think you should follow this book. Knowing what the courts expect, as in the above guide and in court rules, helps you adopt a sensible structure. Some briefs may need little procedural history. Others may thrive without facts sections — briefs anchored on pure law require little factual narrative.

1.3 Issues for Determination

This should be the first substantive entry, right after the table of contents. I respect, but differ from, other legal-writing authorities who prefer the apparent logic of beginning with an introduction. The issues for determination should come first because they provide the reader with a prism through which to view everything else, including the introduction. (Remember that your introduction is not merely prefatory — courts don't have time for throat-clearing front matter.) The rest of the brief should be read in the context of the issues. The issues "provide[] the lens through which the judge-reader filters the rest of the brief." When judicial readers know up front what questions the court has to confront, they will be able to assess and prioritize all the following material, including the introduction.

(Continues…)



Excerpted from "Brief-Writing Masterclass"
by .
Copyright © 2017 Chinua Asuzu.
Excerpted by permission of Partridge Africa.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Table of Cases, xv,
Preface & Acknowledgments, xix,
Abbreviations, xxi,
1 The Architecture of Argument,
2 Issues for Determination,
3 Facts and Procedural History,
4 The Argument Section,
5 Think before you write,
6 Case Theory, Themes, and Priming,
7 Rhetoric and the Rhetorical Triangle,
8 Logic and Logical Fallacies,
Bibliography, 519,
Index, 543,

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