Presentation is loading. Please wait.

Presentation is loading. Please wait.

The Trial Brief & Supporting Memorandum

Similar presentations

Presentation on theme: "The Trial Brief & Supporting Memorandum"— Presentation transcript:

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

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

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

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)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

19 Argument Start with threshold arguments Next – strongest

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

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

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

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

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)

25 Organizing the Argument
Let the issues be your guide C onclusion R ule E xplanation A pplication

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

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

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

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

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

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

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

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)

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

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

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

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. NOT: My opponent will argue X, but this is wrong because… INSTEAD: Opponent misconstrues the exception allowing employers to test employees as part of an ongoing investigation into economic losses.

Download ppt "The Trial Brief & Supporting Memorandum"

Similar presentations

Ads by Google