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The Trial Brief & Supporting Memorandum & CREAC Review Professor Mathis Rutledge.

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Presentation on theme: "The Trial Brief & Supporting Memorandum & CREAC Review Professor Mathis Rutledge."— Presentation transcript:

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2 The Trial Brief & Supporting Memorandum & CREAC Review Professor Mathis Rutledge

3 2 Pretrial Motions Motions – short & to the point Accompanied by memorandum in support Ex: Memorandum in Support of Motion for Summary Judgment or Memorandum in Opposition to Motion for Summary Judgment

4 3 Structure Caption Title Introduction Statement of Facts Argument & Authorities Conclusion Signature Block Certificate of service Affidavits & Evidence Check the local Rules of Court first

5 4 Caption Court and division Each party’s name and designation in the case (Plaintiff & Defendant) Docket number (usually gives year, sequential number of the case; type of case; information about the division or judge)

6 5 Title Controlled by local rules Tells who is filing the document & type

7 6 Statement of Facts Remember your theory –Highlight favorable facts Include all legally significant facts –Don’t misrepresent by omission –Don’t waste time with underlying facts Include background facts –Places things in context Include emotionally appealing facts

8 7 Statement of Facts Tell what happened Tell the truth, but tell it persuasively Hold the court’s attention

9 8 Facts: Tell What Happened Be objective, straightforward & accurate Do not argue or discuss law

10 9 Facts Don’t omit harmful facts Supportable from the Record –Not inferences Note page numbers and sources

11 10 Hold the Court’s Attention Interesting Easy-to-follow (organization) Omit needless info

12 11 Protect Your Credibility NEVER omit negative facts that are legally significant NEVER omit facts the other side will rely on

13 12 Citations Citations to court documents include parentheses The period of the citation sentence should be inside the parentheses Include pincites (line and page for deposition) Do not include “p” for page Dates only needed if there are multiple documents with the same title or the date is significant Short forms may include id. or see Rule B10.5

14 13 Citations Abbreviations for Court documents: Rule BT.1 (p. 25) (Jones Dep. 10:5-8.) (Mathis Aff. ¶ 2.) (Def.’s Mot. Dismiss 23.)

15 14 Drafting the Facts Tell the story that –Emphasizes theory –De-emphasizes unfavorable facts Organize the story –Clear & persuasive Edit the story –Ensure accurate & supported by the record

16 15 Unfavorable Facts Place near a positive fact Bury in the middle Summarize Writing Strategies –Passive voice

17 16 Tell a Compelling Story Provide context first Consider chronological order Start & end strong

18 17 Multiple Claims Draft a thesis paragraph for the facts – summarizing the bare bones of the case in 3-4 sentences Instead of a chronological background, describe each claim separately Style preference

19 18 Argument & Authorities Weave facts & law persuasively Select best & most persuasive Organize

20 19 Argument Start with threshold arguments Next – strongest

21 20 Organizational Goals Capture the reader’s attention Show client’s position is correct & strong Build credibility

22 21 Heart of the Brief Introduction Statement of Facts Argument & Authorities

23 22 Introduction Short, succinct paragraph (usually one) Goals: –Identifies the client –Describes the motion –Identifies relief requested If filing a response –Indicates opposition –Relief sought

24 23 Introduction Compare to Overview Paragraph Introduce client State basis of lawsuit Summarize your argument – possibly in a separate section

25 24 Summary of the Argument Required by some courts (check local rules) Identify the legal basis for why the motion should be denied (or granted)

26 25 Organizing the Argument Let the issues be your guide Conclusion Rule Explanation Application Conclusion

27 26 CREAC (single claim) C Begin with conclusion or an overview paragraph Identify the elements (issues in dispute) State why summary judgment should be granted or denied

28 27 CREAC R Identify the legal standard – summary judgment, motion to dismiss, etc. For summary judgment – look at Celotex 477 U.S. 317 (1986) and Rule 56

29 28 Multiple Claims Treat each claim separately Example: suit for intentional infliction of emotional distress, constructive discharge and retaliation. Start with IIED

30 29 Multiple Claims First claim – overview paragraph for that claim Identify elements Don’t discuss all of the elements Focus on your strongest arguments

31 30 Point Headings Summarize your argument in a concise and persuasive point heading Ex: Smith suffered no severe emotional distress.

32 31 How to Craft Persuasive Point Headings Point headings should follow breakdown of the rule(s). 1.Andrea will suffer irreparable harm. 2.The balance of hardship favors Andrea. 3.Andrea is likely to succeed on the merits 4.The public interest favors granting Andrea the motion.

33 32 Organizing Under each point, begin with an intro that explains why you should win and state the conclusion you want the court to reach. (Can be +1 sentence) State and prove the rule Apply the rule Restate your conclusion

34 33 Thesis Paragraph first element/first claim Following the point heading – thesis paragraph on the issue Ex. IIED requires severe distress Identify the factors – the courts have found severe distress when... Explain why plaintiff fails to meet the standard (or meets)

35 34 Analysis Deductive writing pattern Explain the rule then Apply to the client’s facts

36 35 Persuasive Rule Explanation You can’t apply the law without knowing it Assume you’re it Use transitions and thesis sentences Focus on the favorable Identify the favorable rule the case stands for Highlight favorable facts and reasoning

37 36 Dealing with the Bad Stuff De-emphasize the unfavorable Bury unfavorable information in the middle of a paragraph or in a dependent clause Emphasize facts that are distinguishable

38 37 Dealing with Adverse Arguments Don’t make arguments for your opponent but anticipate the most obvious ones. Where to fit them in? Depends. –If mirror image of your argument, then your argument suffices. –If they are separate points, need to give it serious thought – maybe at the end.


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