Legal Writing Tag

How To Order Your Arguments

As a very general rule, arguments in a brief should appear in order of descending power or importance.  A judge may stop reading on reaching a clearly winning argument or on deciding that the opening briefing is so weak as not to justify more time.  Either way, there is no benefit in saving the best for last.  There are a few exceptions: Jurisdictional arguments normally go first, even if they are not the strongest.  If the jurisdictional argument is a winner,...

Practical Citation Rules

There are many citation styles one could use in writing briefs—The Bluebook, The Redbook, the University of Chicago Manual of Legal Citation, the California Style Manual, and so on.  One is not inherently superior to another.  If the court that will consider the brief has a required style, then that ends the matter. The fundamental rules for good citations are a very few: citations must provide everything the reader must know to locate the source; citations need to be simple, easy to understand...

Have You Seen the Whole Statute?

Many laws are enacted as a coherent whole and then divided and separated when they are codified.  Part of the statute may be sprinkled into the jurisdiction and procedure code, part into one substantive code and the rest into another.  Additionally, within one code, sections of a single statute may appear widely separated.  Two federal examples: The Chief Financial Officers Act of 1990 appears in the following United States Code titles: 5, 31, 38 and 42. The Child Abuse, Domestic Violence, Adoption...

Researching Uncodified Law for Appellate Briefs

If things did not go so well in the trial court, an attorney may want to return to the books for more research for the appellate briefing.  In cases involving statutory issues, there may be relevant law that has not been codified that may make the difference.

It’s easy to assume that the code book in your hand or the sections that appear initially on the computer screen contain all the laws.  Not so.  Legislatures enact many laws that are not codified at all or are codified only in part.  Common examples include:

• Preambles and recitals.  See generally Arkansas State Police Comm’n v. Davidson, 253 Ark. 1090, 490 S.W.2d 788, 789-90 (1973); Ky.Op.Atty.Gen. 82-566 (Nov. 5, 1982); Wesley Chapel Bluemount Ass’n v. Baltimore County, 347 Md. 125, 699 A.2d 434, 435 (1997) (statement of “legislative policy undergirds and pervades the Act and necessarily sets the general direction for its interpretation”);

What to Do When You Think You Are Done with Your Appellate Brief

Consider whether you are really done.  Have you answered the question(s) that were asked?  All the questions?  Are all the factual and procedural statements supported by citations to the exhibits?  Are there any omitted evidentiary points that may benefit your client as to burden of proof or presumptions in favor of your client or against your adversary? Then follow these steps in the order that makes sense based on the nature of the brief and your work: One time, proofread just the headings or captions.  Cut and paste the headings into a separate document.  Read them apart from the brief.  Do they make sense? Are the captions parallel in structure and tense so that they flow pleasingly? Should you add subheadings to assist the reader or make other adjustments? Is there a step skipped over in the reasoning?

Brief Writing on a Computer

In the “olden days,” as recently as the 1970s, briefs had to be written by hand or dictated, then typed on a typewriter.  An omission or error often meant having to retype the entire page.  The computer can be used simply as a fancy typewriter, but writing on the computer is fundamentally different in kind as well as in quality. The following comments assume the writer starts with the appellate record or an opening or opposition brief on appeal and is required to produce an opening, opposition or reply brief: