The Foundations of an Effective Brief: Research, Outline, and Edit
In both trial and appellate advocacy the primary presentation is done through written briefs, which are only as effective as they are helpful. These are the five points required in writing an effective brief:
Research identifies the essential elements of the case, the relevant case law, and any “magic language,” which, for persuasive advocacy, should appear in your briefs. It must be the first step in the process, and it must be current. Special attention should be paid to court rules or statutes within a published case to determine whether the citation or the language of the statute has changed.
- Conceptualizing the Case
The next step requires identification of the core question, or “deep issue” (with thanks to Bryan Garner for this concept), being presented to the court. The deep issue may be written in several sentences and should contain an essential point about the law or facts on the issue, but should be no longer than 75 words. Every time I have thought that my issue is complex and requires more than 75 words, I have been wrong! Keep working with the statement until you hone it to 75 words or less; it will be all the better for it.
- Writing Step I: Make an Outline
Your outline will be the structural foundation for each section of your brief. Writing “off the top of your head” leads to circular arguments and redundancy because you have not completed your thinking about your point and how you are going to make it. This is the time to determine how to tell your story effectively and how to approach the legal argument. You should only begin writing after your outlining is complete.
- Writing Step II: Drafting the Brief or Memorandum of Points and Authorities
The Brief or Memorandum of Points and Authorities should contain four basic elements: Introduction, Statement of Facts, Argument, and Conclusion.
- The Introduction is a summary of the position presented and the relief sought. It should contain the critical facts in a simple summary, the central issue or issues presented, and the answer.
- The Statement of Facts should tell “the story” of the case. Everyone enjoys and remembers stories. By the end of the statement of facts, I want the court to want to rule in my client’s favor. In telling the story, avoid colorful language and “screaming” adjectives and adverbs. They are not persuasive. The court will be persuaded by the good or bad conduct of the parties, not the characterization of the behavior.
- The Argument is where you give the court the tools to rule in your favor. Use headnotes to separate the argument. Good headnotes and sub-headings give the reader cues that aid comprehension. They help make a long brief or argument digestible, and they can assist the writer by exposing organizational weaknesses in the argument.
- The Conclusion should state your major points – in a phrase or two – and should state the ruling you are seeking.
- Writing Step III: Editing
The final component of clear, concise writing is editing! This step ensures that your brief is clear, organized, and concise. It assures that grammar and word usage are correct and that your citations are accurate. The goal is to avoid burying your arguments in too many words or losing it to poor organization or grammar.
Our adversarial system is based on the belief that “the fairest results and the best rules of law are discovered by the vigorous presentation of opposing viewpoints.” Within this system, the well-written brief can be the difference between winning and losing. Following the five points listed above will enhance the clarity and effectiveness of your brief and, consequently, the persuasiveness of your argument before the court. These are concepts that I expand upon in my MCLE course.
 Tyler v. State, 47 P.3d 1095, 1108 (Alaska Ct. App. 2001; J. David Mannheimer).