Part 1 – How to Get a Higher Brief Score

1. Part 1 – How to Get a Higher Brief Score Moot Court Brief Writing Workshop Fall 2009

2. Eleven Tips for Winning “Best Brief” • Read Winning Briefs • Technical perfection • In grammar, punctuation, sentence structure, etc. • In citation • In compliance with the rules • Be consistent • In substance • In form • In format

3. Tips continued • Be concise and clear • Write in Plain English! • Avoid using terms that will distract from your arguments because they are too “charged” • Examples – “clearly” and “obviously”

4. Tips continued • Carefully consider the number and order of your arguments • Triage • Number • Organization • Avoid controversial positions or arguments that are too “outside the box” • Know and use your theme throughout

5. Tips continued • Use your authority well and wisely • Use • Quantity • Quality • Placement • Schedule your work! • Timing • review

6. Part 2 – Parts of the Brief Moot Court Brief Writing Workshop Fall 2009

7. What Rules Apply to Your Brief • Know your Specific Competition’s Rules • Substantive Rules • Procedural Rules • Most Competitions Follow the U.S. Supreme Court Rules for Briefs • The Supreme Court Rules may be found at http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf • Some Competitions May Follow the Federal Rules of Appellate Procedure (“FRAPs”) • FRAPs may be found at http://www.uscourts.gov/rules/ • Most Competitions Also Follow Fictional Local (“Competition”) Rules (Found in the Problem Packet)

8. Appellant’s (Petitioner’s) Brief • General Format for Appellant/Petitioner Moot Court Brief – Supreme Court Rule 24 • Cover Page • Questions Presented • List of Parties/Amended corporate Disclosure Statement – usually not required in moot court • Table of Contents • Table of Cited Authorities • Opinions Below • Jurisdictional Statement • Constitutional and Statutory Provisions • Statement of the Case – Including Facts and Relevant Procedure • Summary of the Argument • Argument • Conclusion Containing Relief Sought * If your competition uses FRAPs look at FRAP 28

9. Appellee’s (Respondent’s) Brief • General Format for Appellee/Respondent’s Moot Court Brief–Supreme Court Rule 24 • Brief must usually comply with everything that is required for Appellant/Petitioner’s Brief, but may omit • list of parties • opinions below • jurisdictional statement • constitutional and statutory provisions • Note: check your competition’s rules to see if you may omit these items! • Rule 24 also allows Appellee/Respondent to omit the questions presented and statement of the case, but in moot court, you will never omit these sections. * If your competition uses FRAPs, look at FRAP 28.

10. Part 3 – Theme Moot Court Brief Writing Workshop Fall 2009

11. Persuasive Arguments Have a Theme (“The Big Idea”*) “The big idea is the theme of the case. It’s the central, unifying idea that convinces the judge . . . this is what happened—and who is responsible for it—because their values and sense of plausibility says, ‘This is how the world works.’ The theme—the big idea—shapes everything you do . . . .” * James W. McElhaney, ABA Journal, “The Big Idea” (Aug. 2006).

12. “To Theme or Not to Theme” • You should ALWAYS HAVE A THEME, but it should never be hokey • What is a Theme? • In a nutshell, the main point you want to get across to the court • A unifying statement that everything on that issue in your brief can relate to • Factual v. Legal Based Themes • Example (Factual) – This case involves a political protest that went too far • Example (Factual) – Every bankruptcy is a tragedy, but every tragedy isn’t a crime • Example (Legal) – The trial court does not have the discretion to allow testimony from an unqualified expert • Example (Legal) - Allowing the appellate court’s interpretation of the statute to stand would lead to absurd result • Avoid Statements Such as “Clearly” and “Obviously”

13. McKethan vs. Addison Considering the applicable law • What are some possible themes for McKethan on appeal? • What are some possible themes for Addison on appeal?

14. Part 4 – Headings Moot Court Brief Writing Workshop Fall 2009

15. Characteristics of Good Headings • They should be positive, persuasive statements relating to an argument supporting your position. • Most good argumentative headings have five characteristics: • They are framed as positive assertions • They set out both your position and the support for that position • They are as specific as possible (including relevant facts if applicable) • They are simple and easy to read • They tell the court what you want them to do (typically for main heading only – not subheads)

16. 1. Positive Assertions • If your heading is to be persuasive, it needs to be in the form of a positive assertion. • Compare • The trial court did not act properly when it denied Mr. Strong’s motion for summary judgment because … • The trial court did not err when it denied Mr. Strong’s motion for summary judgment because … with • The trial court erroneously denied Mr. Strong’s motion for summary judgment because … • The trial court properly denied Mr. Strong’s motion for summary judgment because …

17. 2. Provide Support for Your Positions • A common pattern for an argumentative heading is: • Assertion + because/when + support for assertion • (Put another way) The result you seek + because + the part of the rule that justifies the result + key facts that support that result (for mixed questions of law and fact) or supporting rationale (for pure questions of law) • Examples: • The motion to disqualify should be denied because Carson’s failure to respond to Anderson’s letter constituted consent to the representation of Janoff. • The trial court properly granted Smith’s Motion for Summary Judgment because seeking limited medical treatment for minor mental anguish does not satisfy the severe emotional distress element.

18. 3. Make the Headings as Specific as Possible • If you have a main heading without any subheadings, your support should be specific • If you have a main heading with subheadings, your main heading can be more general • Write statements that talk specifically about the parties and facts in your case. • Set out the facts from the client’s point of view • Omit facts when your question is a pure question of law and, therefore, does not turn on how the law applies to your client’s facts • Omit facts when the key facts, stated briefly and without further explanation, are less than persuasive • General – The trial court erred when it denied defendant's motion to suppress because there was a show of authority. • More Specific – The trial court erred when it denied Mr. Strong’smotion to suppress because the police department’s use of a spotlight was a show of authority.

19. Example – Main Heading with Subheadings • Under the Fourth Amendment, the trial court erred in denying Mr. Strong’s Motion to Suppress because the spotlight shined on Mr. Strong was a show of authority and Mr. Strong submitted to the authority A. The spotlight was a show of authority because a reasonable person would not have felt free to leave. B. Mr. Strong submitted to the show of authority when he did not leave the spotlighted area and he stopped before being ordered to do so.

20. 4. Make your headings simple and easy to read • Keep your headings short • One (maybe two) complete sentence(s) • Usually no more than two or three lines of type • If you find yourself needing to put too many thoughts into one heading, maybe you should break the section and use sub-headings. • Each Issue will have ONE main heading. Each independent ground for recovery on that issue will have its own subheading and sub-subheadings • All subheads should directly support the heading above it

21. Use Conventional Formats for Headings • If you decide to use subheadings, you must use at least two, otherwise merge the one subheading into the main heading. • Use the space between your heading and subheading to set out your thesis paragraph for that section of your brief. • Use different typeface treatments (italicize, underline, bold, ALL CAPS) for Section Headings, Issue Headings, and Issue Subheadings • Only use ALL CAPS for Section Headings, e.g., ARGUMENT, STATEMENT OF FACTS • Use standard outline format for numbering: I./A./1./a./i.

22. Exercise You represent Laura McKethan (Petitioner) in her appeal against Samuel Addison. On appeal, you are arguing that the trial court was wrong in granting Addison’s Motion for Summary Judgment on McKethan’s claim of IIED. You are currently writing an appellate brief strictly on the “extreme and outrageous conduct” element of IIED. Organize the arguments for this issue and draft all relevant headings and sub-headings relating to that element.

23. Part 5 – Table of Contents and Table of Authorities Moot Court Brief Writing Workshop Fall 2009

24. Table of Contents • Headings and Subheadings are taken directly from your argument section and put in the TOC • The brief judge will mentally make a determination regarding how good your brief will score just from reading your table of contents. Making a TOC Exercise

25. Table of Authorities • Cite to as many authorities as possible (without doing massive string cites) • Your ToA should be at least 5 or 6 pages long • Where applicable cite to (1) cases from all court levels, (2) federal and state cases, (3) statutes, (4) constitutional provisions, (5) legislative history, (6) law reviews, journal articles, and treatises and (7) any other source you can think of • Don’t use pinpoint citations in the ToA • Your citation must be technically PERFECT • Make the ToA visually appealing • Passim (Bluebook Rule 5.1.2) – use when the authority is cited on more nonconsecutive pages than is convenient to list

26. Part 6 – Questions/Issues Presented Moot Court Brief Writing Workshop Fall 2009

27. Questions Presented for Review • You need to have ONE question presented for each (of the two) issue outlined in the problem packet • Draft a separate QP for each issue (number them), using parallel format for each question • Your presentation of the issue should encourage the court to find in favor of your client’s position (without unnecessary argument) • Is a covenant-not-to compete enforceable when the covenant was a term bargained for as part of the sale of the business when the sale specifically included the company’s customer list? • Is the enforcement of a covenant-not-to compete against public policy when the covenant would eliminate all competition within the market area?

28. Questions Presented for Review • Typeface: regular type/no bold or all caps • Order: • same order as discussed in your argument section • same order as presented in the problem packet • Contents: • applicable law • material facts • legal issues • potentially incorporate the standard of review • Format Options: • Can be a question or a declaratory sentence • Can be one sentence or multiple sentences (but keep short) • Whether, Under/Does/When, Deep Issue

29. Example –Whether/When (Weak – DO NOT USE) • One sentence • Statement, not question, ends with a period • This form does not make a complete sentence • The implied subject and verb are “The issue is” whether • Call section “Issues Presented” rather than “Questions Presented” Example: Whether the trial court erred in finding a peace officer may conduct a warrantless search when testimony indicated the peace officer did not suspect a crime was being committed.

30. Example – Under/Does/When • Under [applicable law], does/is/can/did [your client] [violate/liable for/do an action/recover] when [the listed facts exist]? • One complete sentence • Ends in question mark Example: Under Texas law, which permits a warrantless search only upon suspicion a crime is being or has been committed, did the trial court err in finding the warrantless search was legal when the officer testified he had no suspicion of a crime?

31. Critique the Following Questions Presented • May the Plaintiff enforce the terms of a covenant-not-to-compete when the terms of the covenant are unreasonable? • Can Plaintiff bring a claim for malicious prosecution? • Can a reckless defendant, whose callous conduct caused the death of a precious new life, escape liability for wrongful death just because the baby’s guardians had not yet completed the adoption process?

32. Example – Deep Issue • Typically three separate sentences • Sentence 1 – Relevant Law • Sentence 2 –Relevant Facts (in a declaratory sentence) • Incorporate enough detail to convey they sense of a story • Sentence 3 – Question or Issue Presented • In terms of the relevant law and facts • Can either be a question or a statement Example: Under Texas law, a peace officer may conduct a warrantless search only when the officer suspects a crime is being or has been committed. In the trial court, the investigating officer testified he did not suspect the commission of a crime. Did the trial court err in determining the warrantless search was legal? or … The trial court erred in implicitly determining that the officer’s warantless search was legal.

33. Exercise Use McKethan vs. Addison to formulate your questions presented for review Please exchange your work with a partner and critique your partner’s issue statements.

34. McKethan v. Addison – Issue Statements • Multiple Sentence (“Deep Issue”) Ending in Question —Petitioner A person is liable if his conduct is so outrageous and extreme as to exceed all possible bounds of decency, considering the conduct’s context and the parties’ relationship. After Mckethan ended a relationship with Addison, Addison harassed her with repeated calls, broke into her home, brandished a knife at her, threatened to scar and to disfigure her when he knew that her career depended on her appearance, and scoffed that he might return. Were Addison’s harassment and threats extreme and outrageous?

35. McKethan v. Addisoncontinued • Multiple Sentence (“Deep Issue”) Ending in Declarative — Petitioner A person is liable if his conduct is so outrageous and extreme as to exceed all possible bounds of decency, considering the conduct’s context and the parties’ relationship. After Mckethan ended a relationship with Addison, Addison harassed her with repeated calls, broke into her home, brandished a knife at her, threatened to scar and to disfigure her when he knew that her career depended on her appearance, and scoffed that he might return. Addison’s harassment and threats were extreme and outrageous.

36. McKethan v. Addisoncontinued • Single Sentence (Question)—Petitioner Is Addison liable for his outrageous and extreme conduct when, after Mckethan had ended a relationship with him, he harassed her with repeated calls, broke into her home, brandished a knife at her, threatened to scar and to disfigure her when he knew that her career depended on her appearance, and scoffed that he might return?

37. Part 7 – Editing Moot Court Brief Writing Workshop Fall 2009

38. Brief Editing Techniques • Large Scale Editing • First Edit – Structure and Organization • Is the brief as a whole laid out in a logical fashion? • Does the brief have visual appeal? Proper typesetting, page breaks, and white space. • Do the headings tell the story? • Are you consistent throughout entire brief? • Small Scale (Special Purpose) Editing • Second Edit – Completeness • Does each argument go through all necessary analytical steps? Are there flaws in the analysis? • Have you tied all your arguments back to your theme? • Does every argument tell the court what you want them to do (at a minimum in a mini conclusion)?

39. Brief Editing Techniques continued • Third Edit – Conciseness • Read sentence by sentence – Is each sentence necessary and does the sentence advance the goal of the paragraph? Can the sentence be worded more simply? • Read paragraph by paragraph – Is each paragraph necessary and does it advance the goal of the argument section? • Read section by section – Does each section flow together? Is there appropriate use of road mapping and transitions? • Forth Edit – Correctness in Grammar, Punctuation, and Sentence Structure, and Typography (no typos please) • Refer to Lauren Simpson’s common errors handout • Fifth Edit – Correctness in Citation • Placement and form • Sixth Edit – Compliance with the Rules

40. Part 8 – Summary of the Argument* Information in this section is adapted from Teresa Rambo and Leanne Pflaum, Legal Writing by Design 422 et seq. (2001). Moot Court Brief Writing Workshop Fall 2009

41. Summary of the Argument – Purpose • The Summary of the Argument is a short, affirmative description of the reasons detailed in the Argument and Authorities Section that support your client’s view of the case • Include only the arguments favorable to your case • Generally no more than 1-2 pages • Objectives • To familiarize the court with your client’s case • To concisely tell the court what it needs to know to rule in your client’s favor • To clearly request the relief that you want for your client

42. Summary of Argument - Structure • The First Paragraph – • Begin with an introduction that provides context and sets out the overall conclusion you want the court to reach on the issue presented • Tell the court what the conflict is (what are the issues) and how the conflict should be resolved • Sometimes called a summary within a summary • Good place to set out your theme

43. Summary of Argument - Structure • The Middle Paragraphs – • Divide into sections that correspond to the issues presented for review • Include one (or two) paragraphs for each argument supporting each issue • Follow the same order as the argument and authorities section • Provide only enough information for the court to agree with your conclusions • Highlight/Summarize the “R[e]A” • Paraphrase governing law and the most important rules • Apply rules to decisive facts • Explain briefly the reasons for your conclusion • Include only the important points

44. Summary of Argument - Structure • The Last Paragraph – • tell the court what you want them to do – the court should find xyz and affirm, reverse, etc. • Be consistent with the conclusion/prayer

45. Summary of Argument – Tips • Write the Summary so that it can be understood on its own • Do not refer to cases, rules, or theories that are not fully explained in the Argument and Authorities section • The summary generally does not contain citations to authorities or to the record • Exception – when there is a crucial case or statute that controls the analysis of the problem • The Summary is not just an abstract discussion of the law – you also have to relate the law to your facts • Condense your argument – Do not just repeat your argument headings

46. Exercise – McMann Read the sample Summary of the Argument and answer the following questions: • What is the writer’s theme? • How could you improve the existing theme? Or, if you don’t like the existing theme, what theme would you use? • How can this summary of the argument be improved?

47. Part 9 – Opinions Below and Statement of The Case Moot Court Brief Writing Workshop Fall 2009

48. Supreme Court Rules vs. Texas Rules • TRAP Rule 38.1 • (d) Statement of the case. The brief must state concisely the nature of the case (e.g., whether it is a suit for damages, on a note, or involving a murder prosecution), the course of proceedings, and the trial court's disposition of the case. The statement should be supported by record references, should seldom exceed one-half page, and should not discuss the facts. • (f) Statement of facts. The brief must state concisely and without argument the facts pertinent to the issues or points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references. • Supreme Court Rule 24 • (d) Citations to the official and unofficial reports of the opinions and orders entered in the case by courts and administrative agencies. • (g) A concise statement of the case, setting out the facts material to the consideration of the questions presented, with appropriate references to the joint appendix, e. g., App. 12, or to the record, e. g., Record 12.

49. Opinions Below – Example OPINIONS BELOW The opinion of the United States District Court for the Eastern District of Jackson is unreported and appears in the record at pages 1-6. The opinion of the United States Court of Appeals for the Thirteenth Circuit is similarly unreported and appears in the record at pages 7-12.

50. Statement of the Case (i.e., the facts) – Supreme Court • Present without argument, but not neutrally • NO Citations to Authority • MUST Reference the Record • Only include facts that are legally significant to the issue(s) on appeal • Some emotionally significant and background facts can be used to give the court context • Deal with both good and bad facts