Part 1 – How to Get a Higher Brief Score
Moot Court Brief Writing Workshop Fall 2008 – Friday
Lauren Simpson
Eleven Tips for Winning ―Best Brief‖
1. Strive for technical perfection In prose In citation In compliance with the rules
2. Be consistent In substance In form In format
3. Be concise and clear
Tips continued
4. Use headings and subheadings to keep your
writing organized
5. Put it in English!
6. Avoid using terms that will distract from your
arguments because they are too ―charged‖ Examples – ―clearly‖ and ―obviously‖
Tips continued
7. Carefully consider the number and order of your
arguments
Triage Number Organization
8. Avoid controversial positions or arguments that
are too ―outside the box‖
9. Know and use your theme throughout
Tips continued
10. Schedule your work!
Timing review
11. Use your authority well and wisely
Use Quantity Quality Placement
Part 2 – Parts of the Brief
Moot Court Brief Writing Workshop Fall 2008 – Friday
Lauren Simpson
What Rules Apply to Your Brief
Know your Specific Competition’s Rules Substantive Rules Procedural Rules Most Competitions Follow the U.S. Supreme Court Rules
for Briefs
The Supreme Court Rules may be found at http://www.supremecourtus.gov/ctrules/2007rulesofthecourt. pdf
Some Competitions May Follow the Federal Rules of
Appellate Procedure (―FRAPs‖)
FRAPs may be found at http://www.uscourts.gov/rules/
Most Competitions Also Follow Fictional Local
(―Competition‖) Rules (Found in the Problem Packet)
Appellant’s (Petitioner’s) Brief
General Format for Appellant/Petitioner Moot Court Brief – Supreme
Court Rule 24
Cover Page Questions Presented List of Parties/Amended corporate Disclosure Statement – usually not required in moot court Table of Contents Table of Cited Authorities Opinions Below Jurisdictional Statement Constitutional and Statutory Provisions Statement of the Case – Including Facts and Relevant Procedure Summary of the Argument Argument Conclusion Containing Relief Sought
* If your competition uses FRAPs look at FRAP 28
Appellee’s (Respondent’s) Brief
General Format for Appellee/Respondent’s Moot Court Brief–
Supreme Court Rule 24 Brief must usually comply with everything that is required for Appellant/Petitioner’s Brief, but may omit list of parties opinions below jurisdictional statement constitutional and statutory provisions Note: check your competition’s rules to see if you may omit these items! Rule 24 allows Appellee/Respondent also to omit questions presented and statement of the case, but in moot court, you will never omit these sections. * If your competition uses FRAPs, look at FRAP 28.
Part 3 – Theme
Moot Court Brief Writing Workshop Fall 2008 – Friday
Lori Twomey
“To Theme or Not to Theme”
On appeal, you should ALWAYS HAVE A THEME, but it should never be hokey What is a Theme? In a nutshell, the main point you want to get across to the court A unifying statement that everything on that issue in your brief can relate to Factual v. Legal Based Themes
Example (Factual) – This case involves a political protest that went too far Example (Legal) – The trial court does not have the discretion to allow testimony from an unqualified expert Example (Legal) - Allowing the appellate court’s interpretation of the statute to stand would lead to absurd results
Avoid Statements Such as ―Clearly‖ and ―Obviously‖
McKethan vs. Addison
Considering the applicable law What are some possible themes for McKethan on appeal? What are some possible themes for Addison on appeal?
Part 4 – Headings
Moot Court Brief Writing Workshop Fall 2008 – Friday
Lori Twomey
Characteristics of Good Headings
They should be positive, persuasive statements relating to an argument supporting your position. Most good argumentative headings have five characteristics: 1. They are framed as positive assertions 2. They set out both your position and the support for that position 3. They are as specific as possible (including relevant facts if applicable) 4. They are simple and easy to read 5. They tell the court what you want them to do (typically for main heading only – not subheads)
1. Positive Assertions
If your heading is to be persuasive, it needs to be in the
form of a positive assertion. Compare
The trial court did not act properly when it denied Mr. Strong’s motion to suppress because … The trial court did not err when it denied Mr. Strong’s motion to suppress because … with The trial court erroneously denied Mr. Strong’s motion to suppress because … The trial court properly denied Mr. Strong’s motion to suppress because …
2. Provide Support for Your Positions
A common pattern for an argumentative heading is: Position + because/when + support for position (Put another way) The result you seek + because + the part of the rule that justifies the result + key facts that support that result (for mixed questions of law and fact) or supporting rationale (for pure questions of law) Examples:
The motion to disqualify should be denied because Carson’s failure to respond to Anderson’s letter constituted consent to the representation of Janoff. The trial court properly granted Smith’s Motion for Summary Judgment because seeking limited medical treatment for minor mental anguish does not satisfy the severe emotional distress element.
3. Make the Headings as Specific as Possible
If you have a main heading without any subheadings, your support should be
specific If you have a main heading with subheadings, your main heading can be more general Write statements that talk specifically about the parties and facts in your case. Set out the facts from the client’s point of view Omit facts when your question is a pure question of law and, therefore, does not turn on how the law applies to your client’s facts Omit facts when the key facts, stated briefly and without further explanation, are less than persuasive
GENERAL:
The trial court erred when it denied defendant's motion to suppress because there was a show of authority. More SPECIFIC: The trial court erred when it denied Mr. Strong’s motion to suppress because the police department’s use of a spotlight was a show of authority.
Example – Main Heading with Subheadings
I.
Under the Fourth Amendment, the trial court improperly denied Mr. Strong’s Motion to Suppress because the police’s act of shining a spotlight on Mr. Strong was a show of authority and Mr. Strong submitted to their authority. A. The use of a spotlight was a show of authority because a reasonable person would not have felt free to leave. B. Mr. Strong submitted to the show of authority when he did not leave the spotlighted area and he stopped before being ordered to do so.
4. Make your headings simple and easy to read
Keep your headings short One (maybe two) complete sentence(s) Usually no more than two or three lines of type If you find yourself needing to put too many thoughts into
one heading, maybe you should break the section and use sub-headings. Each Issue will have ONE main heading. Each independent ground for recovery on that issue will have its own subheading and sub-subheadings All subheads should directly support the heading above it
Use Conventional Formats for Headings
If you decide to use subheadings, you must use at least two,
otherwise merge the one subheading into the main heading. Use the space between your heading and subheading to set out your thesis paragraph for that section of your brief. Use different typeface treatments (italicize, underline, bold, ALL CAPS) for Section Headings, Issue Headings, and Issue Subheadings Only use ALL CAPS for Section Headings, e.g., ARGUMENT, STATEMENT OF FACTS Use standard outline format for numbering: I./A./1./a./i.
Exercise
You represent Laura McKethan (Petitioner) in her appeal against Samuel Addison. On appeal, you are arguing that the trial court was wrong in granting Addison’s Motion for Summary Judgment on McKethan’s claim of IIED. You are currently writing an appellate brief strictly on the ―extreme and outrageous conduct‖ element of IIED. Organize the arguments for this issue and draft all relevant headings and subheadings relating to that element. Once you have completed your headings, (1) e-mail them to me at tlori@central.uh.edu and (2) exchange your work with a partner and critique your partner’s headings.
Part 5 – Table of Contents and Table of Authorities
Moot Court Brief Writing Workshop Fall 2008 – Friday
Lori Twomey
Table of Contents
Headings and Subheadings are taken directly from
your argument section and put in the TOC The brief judge will mentally make a determination regarding how good your brief will score just from reading your table of contents.
Making a TOC Exercise
Table of Authorities
Cite to as many authorities as possible (without doing
massive string cites)
Your ToA should be at least 5 or 6 pages long Where applicable cite to (1) cases from all court levels, (2) federal and state cases, (3) statutes, (4) constitutional provisions, (5) legislative history, (6) law reviews, journal articles, and treatises and (7) any other source you can think of
Don’t use pinpoint citations in the ToA Your citation must be technically PERFECT Make the ToA visually appealing Passim (Bluebook Rule 5.1.2) – use when the authority is cited on more nonconsecutive pages than is convenient to list
Part 6 – Questions/Issues Presented
Moot Court Brief Writing Workshop Fall 2008 – Friday
Lauren Simpson
Questions/Issues Presented
Basic Pointers
What to convey How to formulate Forms ―whether‖ format, giving legal issue (Garner* and Aldisert** advise against, but it is often used) Full sentence, giving issue and background information Advantages Disadvantages Structure and format Specifics Garner: end with a question Aldisert: end with a declarative Advantages
Single-Sentence Format
Multiple-Sentence Format (Garner* and Aldisert** recommend)
*
Bryan A. Garner, The Winning Brief (2d ed. 2004) **Ruggero J. Aldisert, Winning on Appeal (2nd ed. 2003)
Examples
Multiple Sentence Ending in Question (Garner)
Under Texas law, a peace officer may conduct a warrantless search only when the officer suspects a crime is being or has been committed. In the trial court, the investigating officer testified he did not suspect the commission of a crime. Did the trial court err in determining the warrantless search was legal?
Examples continued
Multiple Sentence Ending in Declarative
Statement (Aldisert)
Under Texas law, a peace officer may conduct a warrantless search only when the officer suspects a crime is being or has been committed. In the trial court, the investigating officer testified he did not suspect the commission of a crime. The trial court erred in implicitly determining that the officer’s warantless search was legal.
Examples continued
Single Sentence Format
Under Texas law, which permits a warrantless search only upon suspicion a crime is being or has been committed, did the trial court err in finding the warrantless search was legal when the officer testified he had no suspicion of a crime?
Exercise
Use McKethan vs. Addison to formulate issue statements for the ―extreme and outrageous conduct‖ element of IIED. You should formulate one issue statement for each of the three formats discussed today. You represent Petitioner in this exercise. Once you have completed your issue statements, please exchange your work with a partner and critique your partner’s issue statements.
McKethan v. Addison – Issue Statements
Multiple Sentence (―Deep Issue‖) Ending in Question
(Garner)—Petitioner A person is liable if his conduct is so outrageous and extreme as to exceed all possible bounds of decency, considering the conduct’s context and the parties’ relationship. After Mckethan ended a relationship with Addison, Addison harassed her with repeated calls, broke into her home, brandished a knife at her, threatened to scar and to disfigure her when he knew that her career depended on her appearance, and scoffed that he might return. Were Addison’s harassment and threats extreme and outrageous?
McKethan v. Addison continued
Multiple Sentence (―Deep Issue‖) Ending in Declarative
(Aldisert)—Petitioner A person is liable if his conduct is so outrageous and extreme as to exceed all possible bounds of decency, considering the conduct’s context and the parties’ relationship. After Mckethan ended a relationship with Addison, Addison harassed her with repeated calls, broke into her home, brandished a knife at her, threatened to scar and to disfigure her when he knew that her career depended on her appearance, and scoffed that he might return. Addison’s harassment and threats were extreme and outrageous.
McKethan v. Addison continued
Single Sentence (Question)—Petitioner
Is Addison liable for his outrageous and extreme conduct when, after Mckethan had ended a relationship with him, he harassed her with repeated calls, broke into her home, brandished a knife at her, threatened to scar and to disfigure her when he knew that her career depended on her appearance, and scoffed that he might return?