Brief Writing Guidelines |
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Brief Writing Guidelines |
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A brief is a legal document prepared by a party to the Court. It contains information on the facts of the case, the legal issues to be decided, the law the Court ought to apply, and the decision the party desires the Court to reach.
The emphasis that the Montana YMCA Youth and Government Program places on preparing written briefs corresponds with the importance these documents hold in the real world of appellate law. Many appeals in Montana are decided on the basis of written briefs alone.
Each Attorney team is assigned the position (appellant or respondent) for which they will write a brief. However, it is very important that Attorneys have a thorough understanding of both sides in order to effectively present and defend their case.
The goal of a brief is to convince the Court that one's position is correct, logical and reasonable. To be compelling, a brief must also be understandable and concise. The Court will read many briefs throughout the session, so it is important to write in a clear and interesting manner.
The brief needs to treat the Court as a potential ally to be won over by effective persuasion. The Court is interested in seeing that justice is done and law correctly applied. Briefs should never take a tone that implies that the Court is one's opposition. The Attorney team must never lie or distort the facts of the case, but rather is to present the client's case in the best possible light, and suggest that the action requested is not only consistent with past legal precedent, but is also just and consistent with the rule of law.
Attorneys and Justices need to thoroughly understand the research materials provided with the case, but may also consider its broader social, economic and philosophical implications.
Before going on, you might want to first look at the complete sample brief, such as participants might prepare for the Model Supreme Court, illustrating all of the parts required. (Click Here for a Sample Brief) A detailed explanation of each element of brief writing follows on this current page. The Sample Brief can also be used as a study tool; analyzing the strengths and weaknesses of its arguments will help participants prepare their own materials.
The following guidelines explain why the YMCA Model Supreme Court brief is written in the style shown in the sample. Briefs that do not follow these guidelines will be returned for correction.
Form:
Briefs will be submitted in the following format:
Content:
Briefs must contain the following elements in the order listed:
1.Title Page: The title page shall be in the form shown in the sample brief that follows this section. It contains:
2.Table of Contents: The table of contents in the Model Supreme Court is a separate, single page that lists each element of the brief (excluding itself and the title page) and the page on which each element begins. Because the Argument is the most complex part of the brief, the headings and subheadings used within the argument section should also be listed in the contents with the corresponding page number. Usually this is done in outline form as shown in the Sample Brief.
3. Table of Authorities: the table of authorities in the Model Supreme Court is a list, no more than one page long, of all materials used to support the argument. It includes every page in the brief where the particular excerpt is found. It is similar to the bibliography of a term paper, except that the citation format is different, and cases are usually grouped by type: state statute, case law, Constitutional provisions and other materials. (See sample)
This list not only verifies the sources used by the attorney, but is useful for the Court and for other attorneys to quickly determine what cases, statutes or other materials are being cited, and to easily locate these references in the original research materials used in preparing the case. Correct citation format shall be used as described later in this manual.
Note: participants are not to cite any additional material in their cases other than what is included in the case packet. This is not to say that students aren't allowed to pursue additional resources such as dictionaries of legal terms, guidebooks on brief writing, or manuals on the preparation of oral arguments. But they cannot cite or refer to any source as authority for their briefs or oral arguments other than the resources provided. Factual statements or arguments of law must be able to be backed up by the resources in the case packet.
4. Statement of the Issues: This is a very short introductory statement of the legal issues or points of law involved in the case. It tells the Justices precisely what legal issues the attorney team wants the Court to decide. These statements should be phrased to help one argue FOR a particular conclusion rather than simply against the other side. In the Model Supreme Court cases, there will be two primary legal issues (generally, each member of the team will take one issue to research and prepare an argument).
These issues are stated in question form and should be phrased in such a way that a "yes" answer will support one's position. These statements are very short, generally no more that one sentence per issue, and are generally placed just before the Statement of the Facts.
Example:
The appellant may phrase an issue this way:
"Did the trial court err in holding that...?"
The respondent may phrase the issue in the same case this way:
"Did the trial court correctly conclude that...?"
5. Statement of the
Facts: The Statement of the Facts is
a retelling of the facts from the client's point of view. However,
the facts provided in Model Supreme Court Cases are not to be added
to nor disputed. For a Model Supreme Court brief, this section should
be about one page long, and not more then two pages.
Attorneys explain the situation in a way that helps their client. This is a very important part of the brief that sets the stage for the argument, and should be presented both to help the court understand the case and show the client in the best possible light. But, remember not to assume facts not given, and do not distort, change, or add to the facts!
For example, here is how parties in a real Supreme Court appeal used the Statement of Facts in different ways to support their positions:
The Appellant/Defendant's brief began this way: "[John Doe] was a mentally ill nineteen year old when he participated in a robbery with a juvenile female..."
The Respondent/Plaintiff's brief began: "Since [John Doe] pleaded guilty..."
6. Argument: This is the core of the brief. Students may find the argument to be somewhat like writing a persuasive essay with lots of research references. It presents support for the issues presented earlier. Solid research is used to back every part of the argument. Arguments must be well-organized and convincing; attorneys will win or lose their case based on the quality and substance of what is said.
Each point the team wants the court to consider in deciding the case must be described, and the reasons explained with appropriate references to research materials used, and text citations inserted as frequently as needed. Citation format examples appear later in this manual.
In the Model Supreme Court, arguments for each of the two issues should be at least one, but no more than three pages each. The total argument section should not exceed six (6) pages. Attorney teams are advised to have each member take one issue to research and prepare that portion of the argument for the brief. Remember: the total brief, except for title page and table of contents, must stay under the ten page limit.
As an example of how an argument could be written, imagine the following scenario where a team wanted to argue the point that Judicial Immunity protected a County Sheriff from liability in a particular case. That portion of the argument might be written like this:
The doctrine of judicial immunity is firmly entrenched in American law as held by the US Supreme Court when it stated "a like immunity extends to other officers of government whose duties are related to the judicial process." Barr v. Mateo, 360 US 564, 569, 79 S. Ct. 1335, 3 L.Ed. 2d 1434, 1440 (1959). Accordingly, the doctrine of judicial immunity shields Sheriff Innocent from any liability arising from his release of the defendant, because he was acting upon the order of Judge Knowsit.
As shown above, the team first explains the rule of law, then shows how it applies to the particular case. If needed, a short direct quote is included to help the Court recall the precedent or law in question.
The team then makes additional arguments to demonstrate that Sheriff Innocent was not liable. They continue to cite relevant cases, statutes and constitutional provisions that further bolster their overall argument. (Reminder: participants are not to cite any additional material in their cases beyond what is included in the case packet.)
Structurally, each part of the argument is first directed at supporting the various issues of one's own case, then also opposing the contentions anticipated to be brought up by the opposing party.
Stylistically, the argument is written in forceful, active, positive language. (A team wants the court to rule FOR their client, not simply against the opposing counsel.) The argument also forms the core of one's oral presentation and will be used by the Justices to make their decision.
The writing of the argument, as shown in the sample brief, uses headings and subheadings to begin each section of the narrative and help clearly organize the argument. The same structure of headings and subheadings should be summarized in the table of contents. The idea is to do everything in terms of both form and substance to help the Court understand the reasonableness and logic of the argument, and thus decide in one's favor.
The following outline style is one commonly used when writing arguments in Montana:
I. ISSUE (bold and all caps)
A. Main Point (Bold, Underlined, First Letter Caps)
1. Supporting Points (Bold, First Letter Caps)
Note: This is also handy way to prepare one's notes for the oral argument. It is more effective to have an outline to refer to than the written text. One reason to outline an oral argument is because Justices are free to interrupt an oral argument and ask questions at any time. Questioning can take an oral argument off track very quickly. Therefore, an outline is better than a prepared speech because it allows the Attorney a more effective way to remember what points have been covered and makes it less likely that someone will lose his or her place.
7. Conclusion: This is where the Attorney team summarizes their argument and specifically states the result desired. The conclusion in a Model Supreme Court brief can be as short as one sentence, and should not exceed a single short paragraph. The signatures of the Attorney team follow the conclusion, as shown in the sample.
Why is Citation Important?
The strength of a legal argument depends in large part on how law, as established in previous court opinions and precedents, is applied to a given case. Therefore, citation of relevant statutes and case law is a critical part of legal writing. Justices and other interested parties often go to the source and read the full text of legal opinions in order to better understand a party's argument.
Court opinions are widely published in books called reporters. This is where most citations to case law are made. There are many different reporters. The Montana Reporter, the Pacific Reporter, the Federal Supplement Reporter, and the Supreme Court Reporter are examples.
Citation of Legal Documents is a bit different from the footnotes and bibliographies of high school and college term papers, but the basic idea is the same: to allow the reader to know what sources were used in creating the written document, and where to locate specific information.
How to Cite Materials:
Cases and related research materials included in Model Supreme Court case packets are listed with a citation format that can be copied exactly as is for brief writing. However, the guidelines below can be used as a reference if needed.
Courts require citation in a specific format which can vary from court to court. The Bluebook: A Uniform System of Citation, Cambridge: Harvard Law Review Association, most current edition, is the standard for legal citation in the United States. However, the Montana Supreme Court uses a format slightly different from the Bluebook, and participants may notice this when reading Montana Court opinions. For the Model Supreme Court, either Montana's or the Bluebook's citation format is acceptable.
Most cases are cited something like this: State v. Black 570 P.2d 489 (CO, 1983)
Sometimes you need to note the specific page
within an opinion. So, if you wrote the citation:
State v. Black 570 P.2d 489, 493 (CO, 1983),
this would indicate that while the case opinion begins on page 489,
the specific material you want people to notice begins on page
493.
Although it looks awkward to read, legal citations are usually placed directly into the text of a brief as shown in the example on page 20. In the narrative parts of a brief, complete citations are used the first time they appear, but may be abbreviated afterwards as follows:
If the full citation is: State v. Black, 570 P.2d 489, 491 (CO, 1983)
Subsequent citations may be abbreviated as: Black, 570 P.2d at 493 (if page 493 is where the specific information is located.)
Sometimes an opinion may be published in more than one reporter. Model Supreme Court case packets will include all the citation references needed for the Table of Authorities. If specific page numbers are cited in a narrative, just cite and use the page numbers of one reporter, the one used in the case packet.
General Abbreviations:
The following abbreviations are commonly accepted in legal citation:
Note: If you need to say "section" at the beginning of a statement, spell it out, but if it's within a sentence, you may use the § symbol, available on most word processors.
* In Word Perfect on a PC, these characters can be accessed under the "Insert" menu&endash;> Characters&endash;>Typographic Symbols. On a Macintosh Computer, the key combination option-6 produces the § symbol for most word processing programs, option-7 produces ¶.
Laws/Statutes are cited as follows:
Montana Law: Montana Code Annotated 00-0-000 (3) (a) &emdash;(or Mont. Code Ann.)
&emdash;abbreviated form: § 00-0-000 (3) (a), MCA
Federal Law: 10 USC section 3069
(this means volume 10 of the United States Code, section 3069)
&emdash;abbreviated form: 10 USC § 3069
Other state formats vary, and Model Supreme Court participants can generally use the samples provided in the case materials if laws from other states are cited.
Constitutional materials are cited as follows:
Montana Constitution:
Article II, Section 1, Montana Constitution -- abbreviated form: Art. II, § 1, Mont. Const.
US Constitution:
Article II, Section 1, United States Constitution -- abbreviated form: Art. II, § 1, US Const.
Bill of Rights:
First (or whichever) Amendment to the United States Constitution
Case Law:
As noted earlier, the general form for legal citations is: Case Name, Reporter information (year)
Reporters commonly used in researching Montana cases are listed below with abbreviations:
Other regional reporters such as the Southern Reporter, Atlantic Reporter, etc. may sometimes be used as references in a Model Supreme Court case. Case packets will show how to cite them.
Examples:
A Montana decision:
State v. Jones, 100 Mont. 271, 275, 485 P. 2d 123, 127 (1995)
abbreviated form: Jones, 100 Mont. at 127 (Use the source in your case packet)
Notice that the Montana case is reported in both the Montana Reporter (Mont.) and the Pacific Reporter (P. 2d). We know it's a Montana Case because it is in the Montana Reporter, so the state abbreviation is left out of the parentheses where the date is listed.
Another state's decision:
State v. Smith, 215 P. 2d 214, 225 (CO, 1997)
abbreviated form: Smith, 215 P. 2d at 225
Notice that the out of state case cites the state and the year (CO, 1997). This is because the case citation comes from the Pacific Reporter, and in this situation you can't tell which state decided the case.
Federal Court decision:
Smith v. Jones, 123 F. Supp. 456, 461 (D. Mont. 1995)
abbreviated form: Smith, 123 F. Supp. at 461
Notice that D. Mont. means the case originated in the Federal District Court for Montana.
Federal Circuit Court of Appeals decision:
Anderson v. Wilson, 3 F. 3d 292 (9th Cir., 1996)
abbreviated form: Anderson, 3 F. 3d at 302
9th Cir. means the case was heard by the 9th Circuit Court of Appeals.
U.S. Supreme Court Decision:
Roe v. Wade, 410 U.S. 113, 93 S. Ct 705, 35 L. Ed. 2d 147 (1973)
abbreviated form: Roe, 410 U.S. at 116
Notice that Supreme Court decisions can appear in three different reporters.
A decision not yet published in any reporter: (This only applies to a very recent decision!)
State v. Doe, No. 98-000 (Mont. April 25, 1998)
98-000 is the case number. The date the Court handed down its decision is in parentheses.
