--Peter.Friedman 09:05, February 2, 2006 (EST) == Brief Writing Checklist == Friedman Advocates Introduction

Good legal writing must first be good writing. The more broadly you read outside the law, the better the writers you read, the better legal writer you will become. When you come across good legal writing, pay attention to why it works. Usually the writing is well thought out. It is intellectually honest. It anticipates the Court’s concerns and tells the court precisely what remedy it seeks. It is clear. It is concise and written persuasively. This should be your aim when writting a brief.

1. Overall organization
   1. Caption
      1. FRCP 10(a)[1]: "Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties."
   2. Preliminary Statement
      1. Starts by identifying the party submitting the brief, specifying the relief that party is asking for, and explaining, briefly, why the Court should grant that relief. [2]
      2. Should not exceed 1½ pages in a brief that is 15 pages long or less.
      3. Should serve, standing alone, to provide reader with enough information to understand the entirety of the brief.
   3. Statement of Facts
      1. Must set forth all facts relevant to the legal analysis in the Argument section.
      2. Must cite to the source of the “facts.” Cite to the complaint. See Rule 29 of the ALWD Citation Manual.[3]
      3. Facts should not be misrepresented, but they should be presented in a way that is most helpful to your argument.
   4. Roadmap Paragraph
      1. Shows the reader where you are taking him/her. Can basically be a compilation of the topic sentences of the subsequent paragraphs in the Argument
   5. Argument
      1. The Argument section of the brief is where you bring to bear your skills in legal reasoning. The great complexity of our society is reflected in the nearly infinite variety of legal arguments that can be made. Become a scholar and a philosopher. Think deeply about where your case fits in the pantheon of the law. But also make sure that what you write will convince who your audience. Present your strongest arguments first, followed by any secondary arguments that are relevant.
   6. Conclusion
      1. Simply states that "based on the reasoning set forth above" the moving party is entitled to the relief she seeks and specifies again that relief. Does not summarize the argument again.
2. Paragraphs
   1. Topic Sentences
      1. 1. State a conclusion—the rest of the paragraph supports that conclusion.
         2. Often the conclusion can be supported by following the CREEAC formula. (CREEAC = Conclusion, Rule, Example, Explanation, Application, Conclusion.)
   2. Paragraph Content
      1. 1. Do not bite off more than you can chew; that is, keep each paragraph focused entirely on the conclusory topic sentence and do not move to a tangential point within that same paragraph.
         2. If necessary, break up complicated topics into multiple paragraphs by using a broad topic sentence for the first paragraph. Follow that with paragraphs that are an individual subset of the broad topic, similar to an outline, each with their own conclusory topic sentence.
         3. Using this approach will allow the reader to follow your organization more clearly than if one were to use paragraphs that contain multiple conclusions.
3. Sentences.
   1. Write in the active voice.[4]
      1. • The passive voice is cumbersome and difficult to read. Compare "The girl caught the ball" (active voice) with "The ball was caught by the girl" (passive voice). Judges commonly use passive voice in their opinions, so it's tempting for law students to use passive voice to sound more "lawyerly."
   2. Eschew legalese [5].
   3. “The reader is a sheep. If he can possibly go in the wrong gate, he will.” – E.B. White. This means you need to lead your reader along your thought process - make everything obvious to the reader.
   4. “I hate quotations. Tell me what you know.” R.W. Emerson. Don’t use quotations just because you have one, try to paraphrase or write it better if you can.
   5. Also, preface a quotation with your own words. Courts don't make clear statements so YOU have to intpret for the reader.
   6. Keep sentences short and concise. Eliminate unecessary words that add no meaning to the sentence. However, mixing shorter and longer sentences will make the shorter sentences more powerful and may make your writing more interesting and varied.
   7. Avoid the use of pronouns and the like (he, she, it, them, they, that, this, etc...) when the reader may not be clear on what those pronouns refer to.
   8. Avoid using too many appositives and asides.
4. Performing Legal Research
   1. Types of Legal Authority: There are two basic types of legal material: primary and secondary sources. Primary legal materials include statutes, cases and regulations - the law itself. Secondary legal materials provide commentary and interpretation of the law. Secondary sources are particularly helpful if unfamiliar with an area of law, providing a general summary of the topic.
   2. Primary
      1. United States Code[6]
   3. Secondary
      1. Legal Encyclopedias are excellent tools that give you a concise summary of most topics of law. You can find footnotes containing various cases and statutes where you can begin your basic research. Some examples of legal encyclopedias are American Jurisprudence, and Ohio Jurisprudence.
      2. Treatises such as those by Williston, Corbin, Perillo and Calamari are also useful tools. Here you can find helpful explanations of various legal doctrines.
      3. Legal periodicals include legal newspapers, bar journals and law reviews. These publications contain articles and are a good place to start if you want very current information. To locate articles, use LegalTrac (http://0-infotrac.galegroup.com.pacman.law.du.edu/itweb/denv80220), an online index of over 800 periodicals from 1980-present. You can also try Hein Online (http://0-heinonline.org.pacman.law.du.edu/HeinOnline/start.pl) to find full text articles.
      4. The American Law Report
      5. Restatements of Law
      6. Uniform Laws and Model Acts[7] provide annotated versions of statutes. They also give helpful footnotes and citations. (e.g. The Ohio Uniform Code)
5. Use of Case Law
   1. Case law should be used in order to convey how courts have dealt with similar fact patterns in the past. Both mandatory and persuasive authority cases may be used, however a court is only required to follow mandatory authority cases.
   2. Discussing a case: (Advice from a Curmudgeon)
      1. 1. Somebody sued somebody for something, OR Somebody asked the court to do something.
         2. The trial court held something (do not use the court "discussed" "analyzed" "believe")
         3. The appellate court held something (usually- affirm, reverse, vacate or remand.)
         4. After 1-3, add any other important details about the case.
   3. Precedents are, first, illustrations (or "examples") of the ways the rules have been applied to reach the conclusion you advocate. Thus, the most important thing about a precedent is, first, its facts and its result. Then, you can explain why that result makes sense. Those explanations can come from the case, from another source, or even from your own brain! The important thing is this: is it a persuasive explanation?
   4. Then you apply that reasoning to explain why the result you are advocating in your case makes sense. That application extends the reasoning supporting the precedent to your case. The extension of that reasoning may be by analogy. It may be by explaining how the policy supporting the precedent also applies to the situation in your case. It may be by explaining how the morality underlying the precedent applies in your case. It may be by explaining how economic efficiency rationales supporting the precedent similarly apply in your case. Or it may be simply by explaining how common sense explains the result in the precedent and in your case. There may be several explanations. The most important thing about the explanations is this: do they persuade?
6. Citation
   1. Short form citation. See Barger on short-form citation.
   2. Common Student Citation Errors.[8]
   3. ALWD citation manual
   4. The Bluebook, A Uniform System of Citation
7. Editing
   1. Start writing early and rewrite often.
   2. Read the paper aloud to yourself to make sure it makes sense.
   3. Don't just use the spellchecker because it will not always pick up on your intended spelling.
   4. Take a break after completing an assignment before you proofread. You will edit with less bias once you have detached yourself from the piece.
   5. Try reading the paper backwards sentence by sentence so you are editing the writing and not your argument.
   6. Be as concise as possible - get rid of all unecessary words. Read each sentence and see if all the words are necessary to get your point across.
   7. Don't forget to sign your pleadings!

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