Theory of the Case,
Pre-Trial Motions and
Writing a Brief
Tom Zaccaro, firstname.lastname@example.org
Joanne Caruso, email@example.com
Review of Criminal
Court System and Trial
In the United States, there are two
separate court systems – state system and
The federal judicial system and most state
systems, including California, have three
levels of courts
Criminal Court System
California Supreme U.S. Supreme Court
Circuit Court of
Courts of Appeal Appeals
Superior Courts District Court
Sequence of Trial and Steps in Each Sequence
Evidence: Facts – Testimony or Physical or
Layout of Courtroom
Judge, Baliff, Clerk, Prosecutors, Defense Attorneys,
Witnesses (Fact and Expert), Jury
THEORY/THEME OF THE CASE
Every case needs a theory
Something judge and jury will remember
Coherent and plausible
Must explain why you should win and be
supported by the facts and law
THEORY/THEME OF THE CASE
Sometimes will have more than one theme, but be
careful, generally at most three
Your themes and theory should be repeated over and over during
everything you do at trial
In a criminal case where you are representing the accused, one theme
may be the conduct is simply not unlawful conduct.
Another theme may be that the government is completely overreaching
in its attempt to prosecute the conduct.
The third theme may be that the government failed to prove its case
beyond a reasonable doubt or someone else committed the crime.
Your preparation should
begin long before
Argument is the final step of
a multi-step preparation process
• Purpose of Motion: what result do you want
• Identification of Legal Issues
• Identification of Relevant Facts
• Preparation of Briefs: Motion/opposition/reply
• Preparation for Argument
Know The Rules and
Abide by Them
Writing The Brief
Tone of the Briefing
Take the high road
Make it persuasive
Do not make it personal
Judges want to hear what the dispute is, what is at
issue, why it is important and why your side should
Point is to persuade
Judges want to understand the facts of the case,
the legal standard that applies, and why the facts
of your case mean you should win under the law
Basic structure of a legal brief
Introduction: Includes at least, what party the brief is
being submitted on behalf of and what you want the
Court to do.
Summary of Argument - May not be a separate section.
If not, main points of argument included in the
Facts and/or Background – With citations to evidence.
Legal Standard – With citations to law.
Argument: With citations to facts and law. In the
Argument section each key point is typically its own
section with appropriate subsections as needed.
Judges have wide discretion over evidentiary disputes.
When writing brief, be clear, don’t overreach, put
best points first
Deal with law that may hurt you: distinguish it or tell
judge why it doesn’t apply
Deal with bad facts and tell court why you should still
Be careful not to misstate either the law or the facts as
opponent will likely point this out (“The defense is
misleading the Court”).
Respond to other side’s arguments
Your credibility with the Court is everything.
Issues the Court may raise
What the opposing side will argue
Written Outline: how and what to prepare
Cases: Determine which are your best and worst
cases and figure out how best to use them (the best
cases) and distinguish them (the worst cases)
Argument to the Court
How to address the court, refer to the parties and opposing
Use of the podium
Be professional and courteous to opposing counsel and the
Keep your cool
Get to the point
Be specific about the relief sought
Answering the Court’s Questions
Make certain that you understand the
question before you answer it.
Answer the question directly.
Refer to specific cases or evidence to
support your answer.
Transition back to your argument.