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.