Brief Writing: Making a Brief Helpful and Persuasive

1. Brief Writing:Making a Brief Helpful and Persuasive Robert Dubose Alexander Dubose Jones & Townsend rdubose@adjtlaw.com

2. 4 Keys for a Winning Moot Court Brief 1 – Clarity • Organization should be highly visible • Brief should be easy to read. • Arguments should be easy to understand.

3. 4 Keys for a Winning Moot Court Brief 2 - Persuasive arguments • For most judges, persuasiveness is more important than creativity. • Judges may have a “checklist” for persuasive arguments. • Avoid arguments that damage credibility.

4. 4 Keys for a Winning Moot Court Brief 3 - Technical proficiency • Grammar, spelling, blue book • Competition rules

5. 4 Keys for a Winning Moot Court Brief 4 – Lots of research • A long index of authorities helps win moot court competition

6. Tools for Organization – Helping the reader see your organization and understand your argument more quickly

7. Tool #1 – Summary of Argument: Short but Specific •A summary of argument needs to be short (1 – 2 pages) •But the Court needs some specifics to be persuaded. • Conclusory generalizations are not persuasive. • The key specific facts and legal arguments are necessary to persuade.

8. Example – Conclusory Summary The trial court committed a grossly erroneous evidentiary ruling by excluding evidence of the plaintiff’s Mary Carter settlement agreement with a defendant in this case. By its terms, the agreement here was clearly a Mary Carter agreement. Texas courts have repeatedly held that it is error to exclude evidence of a Mary Carter agreement and that the error is reversible.

9. Example – Specific Summary The trial court erred when it excluded evidence of plaintiffs’ Mary Carter settlement agreement with Fred Johnson. Johnson was a defendant, as well as plaintiffs’ main witness. The agreement was a Mary Carter Agreement because it relieved Johnson of liability only if the plaintiffs were successful against the other defendants. The exclusion of a Mary Carter agreement is always reversible error because it prevents the jury from learning the bias of the witness and the true alignment of the parties.

10. Summary – Analysis of example •Specific facts: -Plaintiffs settled with Johnson. -Johnson was a defendant and plaintiffs’ main witness. -The settlement relieved him of liability if the plaintiffs succeeded against other defendants. •Specific legal arguments: -The specifics of this settlement met the definition of a Mary Carter agreement. -It is reversible error to exclude a Mary Carter agreement because the agreement shows the witness’ bias and the parties’ true alignment.

11. Summary – Example 2 The trial court did not abuse its discretion in overruling Federated’s objections to requests for production. In response to the 19 requests, Federated asserted over 130 objections. It even objected to the production of items that are always discoverable, such as its insurance policies. Because the trial court’s discretion in ruling on the objections was broad, its ruling did not abuse that discretion.

12. Summary – Analysis of example •Best arguments: 1. 130 objections to 19 requests 2. Focus on weakest objection – insurance policies not discoverable 3. Standard of review is abuse of discretion.

13. Tool #2 - Argument headers Purposes of a header: 1 - Quick summary 2 - Welcome pause in a string of paragraphs 3 - Transition 4 - Demonstration of organization 5 - Index to help locate arguments

14. Argument headers Characteristics of effective headers: 1 – Use a complete sentence - not just a phrase 2 – Make a positive argument - not just a neutral summary of a legal rule 3 – A reader should be able to read only the headers and understand the argument.

15. Argument headers – Examples of weak headers A. Standard of review B. The existence of a duty to disclose is an element of fraudulent concealment.

16. Argument headers – Example of a persuasive header A. The summary judgment against Jones’ fraudulent concealment claim should be affirmed if there was no evidence that Smith owed a duty to disclose.

17. Tool #3 – Argument Outline • Headers + outline structure • Adds a visible logic to the structure of the argument • Allows the Court to see which points are subsidiary, supporting points

18. Outline - Example A. The Court should affirm summary judgment on Jones’ fraud claim because Jones signed a valid disclaimer of reliance. 1. Summary judgment was proper if the evidence negated the reliance element of fraud. 2. Under Schlumberger, the disclaimer of reliance signed by Jones negates reliance.

19. Tool #4 – Lead with Conclusions •Every argument paragraph should have one primary argument. •The argument of the paragraph should appear in the first two sentences of the paragraph. •This helps the reader see how the remainder of the paragraph supports the main argument.

20. Tool #5 - Begin discussing a case with the reasons you are citing it •This tells the reader why he or she should read about the case •This helps the reader process the information about the case, i.e. • why the facts matter, • how the reasoning of the case supports the argument

21. Example – No conclusion to lead case discussion • In Szczepanik, the former employee of an investment broker resigned and formed a competing firm, taking $36 million in accounts with him. [cite]. The investment broker proved the value of those accounts and proved that it could have expected to retain those accounts for the lifetime of the account holders. The Texas Supreme Court held that this evidence was legally insufficient proof of lost profits. [cite].

22. Example – conclusion to begin case discussion The Szczepanik case demonstrates why there was no evidence to support Smith’s claim for lost profits. Under Szczepanik lost profits cannot be recovered unless there is evidence that the plaintiff’s customers would have continued doing business with the plaintiff but for the defendant’s conduct.

23. Example 2 – adding a conclusion to begin case discussion Although Smith’s argument relies on Szczepanik, that case is distinguishable because there was no proof that the plaintiff’s former customers would have continued doing business with the plaintiff if the defendant had not wrongfully taken those customers.

24. Tool #6 – Repeat buzzwords and phrases • Using different words for the same concept make an argument hard to follow. • Repetition makes the argument easier to follow. • Repetition = reinforcement.

25. Example with synonyms instead of repetition • The district courtcommitted reversible error because it excluded Smith’s report. • First, the lower courtabused its discretion by not admitting Smith’s report. • Second, the trial court’s improper action by refusing to admit Smith’s report was not harmless error.

26. Example with repetition • The district courtcommitted reversible error because it excluded Smith’s report. • First, the district court’s exclusion of Smith’s report was error. • Second, the district court’s error in excluding Smith’s report was reversible.

27. Tools for Persuasive Arguments

28. Tool #7 – Argument selection •Credibility is critical •Place your best argument first •Delete weak arguments because they hurt credibility •Delete unnecessary information •But anticipate and answer potential questions that the Court will have

29. Tool #8 – Write arguments, not opinions or law review articles Avoid judicial and academic conventions: • Long neutral statements of various legal rules • Overuse of footnotes

30. Write arguments – Example of a neutral discussion When interpreting an insurance policy, as any other contract, courts should read all parts of each policy together and exercise caution not to isolate particular sections or provisions from the contract as a whole. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995); Gen. Am. Indem. Co. v. Pepper, 161 Tex. 263, 339 S.W.2d 660, 661 (1960).

31. Write arguments – Example of an argument Dominion’s argument improperly focuses on the notice exclusion in isolation from the rest of the policy and violates the rule that insurance policies should be read as a whole. SeeState Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995).

32. Tool #9 - Join the Issue Joining the issue involves three steps of argument: • Make the best arguments for your position • Acknowledge briefly the best argument for the other side’s position • Explain why your arguments should prevail over the best argument for the other side

33. Why joining the issue is persuasive •Fairly acknowledging the other side’s argument is a sign of objectivity and strength. •It helps the court weigh the arguments and understand why your arguments are better.

34. Join the Issue – Example 1 This case presents a choice between two legal rules. The State proposes a rule that would give the police good cause to search any citizen based on any anonymous tip about criminal conduct, regardless of whether that tip is reliable. In contrast, the better rule is the rule established by existing precedent. Under that rule, an anonymous tip must have some indicia of reliability. In other words, there must be some external fact that corroborates the accuracy of the tip.

35. Join the Issue – Example 2 Fields proposes that Houston Cab should be liable for negligent entrustment because it violated its own internal requirements for drivers. No Texas court has adopted Fields’s proposed rule. The rule would punish businesses by lowering the bar for liability whenever businesses try to set a higher internal bar than the law requires. It would discourage the use of safety policies.

36. Tool #10 – Support arguments with policy • Identify the negative consequences of the other side’s proposed rule. Or identify the benefits of your rule. • Use analogies to other situations. • If possible, include a citation that recognizes the policy, even if in a different context. But if necessary, assert the policy without a cite.

37. Support arguments with policy BUT • As a general rule, don’t label your argument as a “policy” argument. • Try to weave policy arguments into other arguments. Avoid having a separate part of your brief for just policy arguments.

38. Policy argument – Example 1 It is consistent with the purpose of the economic loss rule to apply it to insurance broker negligence. In Calloway, the Nevada Supreme Court held that “the economic loss doctrine prohibits recovery in tort for purely economic losses.” Id. at 1263. The purpose of the doctrine is to “shield a defendant from unlimited liability for all of the economic consequences of a negligent act, particularly in a commercial or professional setting, and thus . . . keep the risk of liability reasonably calculable.” Id. at 1266. It makes sense to apply the rule to this commercial setting – broker negligence – to shield defendants from unlimited liability for economic consequences.

39. Policy argument – Example 2 The rule promoted by the insurers would require this Court to interfere with the free market for insurance. Instead of changing the terms of insurance policy contracts in the free market, the insurers are now asking this Court to alter existing contract language by judicial fiat. This Court has long recognized that “contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice.” Mo., Kan. & Tex. Ry. v. Carter, 95 Tex. 461, 68 S.W. 159, 164 (1902). This Court should decline the insurers’ invitation to interfere with the freedom of contract and the free market for insurance.

40. Policy argument – Example 3 Smith’s proposed rule would punish businesses by lowering the bar for liability whenever businesses set their own internal rules. For example, consider a company that adopted an internal policy of hiring drivers with 20:15 vision, but mistakenly hired a driver with only 20:20 vision. If that driver was involved in a collision, would the company be subject to negligent liability entrustment for hiring a reckless driver because the driver’s vision was “only” 20:20? Not only would that rule be unfair, but by expanding potential liability, Smith’s proposed rule would discourage businesses from creating any internal policies for lending vehicles, apart from meeting the minimal legal standard to avoid a claim of negligent entrustment.

41. Brief Writing:Making a Brief Helpful and Persuasive Robert Dubose rdubose@adjtlaw.com