Brief-Writing Masterclass

Course Syllabus

1. Think before you write.
1.1 Believe in your client’s cause—formulate a thesis for every case.
1.2 Consider the Flowers paradigm.

2. Theories, Themes, and Primes

2.1 Use your theory of the case to convert the facts of the dispute into a legal problem soluble in your client’s favor.
2.2 Use your theme to supply moral justification for the victory you prophesy.
2.3 Clothe your theme with narrative fidelity.
2.4 Leave indelible impressions with your theme.
2.5 Evoke emotions with your theme.
2.6 Use your theme to prime the judge to view the case your way.
2.7 Use your theory of an appeal to show the presence, or absence, of reversible error, as well as injustice, below.

3. What’s a brief?
3.1 What’s a brief?
3.2 What types are there?
3.3 How should you structure your brief?

4. Issues and Introduction

4.1. What’s an issue for determination? Apply the lay-friend test.
4.2. Place your issues up front.
4.3. To formulate an issue, find governing law and isolate
legally significant facts.
4.4. Winnow and prioritize your issues.
4.5. Devote time and effort to formulating your issues.
4.6. Learn the methods of drafting issues. Then unlearn most of them.
4.6.1. The whether-fragment
4.6.2. The one-sentence statement
4.6.3. The one-sentence question
4.6.4. The Catholic catechism
4.6.5. The under-does-when formula
4.6.6. The deep-issue format
4.7. Use deductive logic to elicit doctrinal holding.
4.8. Forget circumstances of this case.
4.9. Prefer legal to procedural juxtapositions.
4.10. Craft issues to steer the court your way.
4.11. Forgo finger-pointing in your issue-formulation.
4.12. Phrase your issues like questions.
4.13. Follow the statement of issues with an introduction to your brief.

5. Facts and Procedural History

5.1. Prefer full-sentence to topical subheadings.
5.2. Tell a story with your facts.
5.3. Take your narrative beyond mere storytelling.
5.4. Invest your story with a theme.
5.5. Stress your client’s perspective.
5.6. Let the facts tell the story—don’t interpret, don’t interrupt.
5.7. Shun the dating maze and other data mess.
5.8. Call parties and witnesses their names.
5.9. Assign substantive descriptions to your data and documents.
5.10. Fit facts to law.
5.11. Deploy characterization for persuasive effect.
5.11.1. Characterization could be constructive or destructive.
5.11.2. Direct negation is not characterization.
5.12. Appeal to the court’s conscience. Appeal to the lay conscience.
5.13. Appeal to the court’s emotion.
5.14. Tell your facts differently than in other documents.
5.15. Remember that the facts control the law.
5.16. Think like a novelist—borrow fiction elements.
5.16.1. Character—make your client likable.
5.16.2. Conflict—characterize the conflict with thematic
undertones.
5.16.3. Resolution—prophesy a happy ending.
5.16.4. Organization—provide context before detail.
5.16.5. Point of view—choose a client-centered perspective.
5.17. Deal with bad facts—play safely with fire.
5.18. Include a procedural history when warranted.

6. The Argument Section

PART A– Organization, Structure, and Posture

6.1. Organize for persuasive flow. Accentuate thesis headings.
6.2. Use outlines and thesis headings for rhetorical advantage.
6.3. Erect signposts along the way.
6.4. Boost organization with roadmaps.
6.5. Push both justifying and motivating arguments. Then provide supportive arguments.
6.6. Learn to structure your argument on each issue.
6.7. Ponder whether to get your foot in their door (FITD) or to slam your door in their face (DITF).
6.8. Winnow and prioritize your arguments.
6.9. Use thesis sentences to reinforce rhetorical narration.
6.10. Use transition, bridging, and paragraphing to boost linguistic coherence.
6.11. Use exquisite civility to boost ethos.
6.12. Present your case as representing good law or sound policy. Save judicial labor. Apply social science.
6.13. Drop the digest and record methods of “argument.” And quarantine the plague of false ratios.

PART B– Rebuttal and Refutation

6.14. Plot your offensive and defensive gambits.
6.15. Enclose refutation in a halo of affirmative arguments.
6.16. Push anticipatory refutation to make your case complete.
6.17. Plot recharacterization, negative imagery, and similar gambits.
6.18. Strategize with candid or zealous advocacy.

PART C– Citations and Quotations

6.19. Minimize citations and quotations. Scrutinize your authorities and isolate their rationes decidendi.
6.20. Know your best precedents.
6.21. Follow hierarchy in citing authorities. And prioritize primary over secondary authority.
6.22. Use explanatory synthesis.
6.23. Avoid ‘talking footnotes.’ Banish bibliographic algebra to footnotes.
6.24. Nurture the pinciting habit.
6.25. Pack your rhetorical punch with parentheticals.
6.26. Maximize citation clauses, citation sentences, and introductory signals. Minimize string citations. Starve bare cites.

7. Conclusion

8. List of Authorities

9. Grounds of Appeal

9.1. Use each ground to capsulize a key complaint against the decision you’re appealing. Use each ground to attack a ratio decidendi.
9.2. Draft your grounds with accuracy, brevity, and clarity. Secure substantive and technical validity for each of your grounds.
9.3. Learn to differentiate legal questions from factual or mixed questions.
9.4. Develop issues from grounds. Make the issues fewer than the grounds.
9.5. Leave the lower court out of your issue statement.
9.6. Argue issues, not grounds.
9.7. Appreciate the nuances of cross-appeals and respondent’s notices.

10. Rhetoric & the Rhetorical Triangle

10.1. Why study rhetoric?
10.2. To exercise your rhetorical skills, you need a rhetorical situation.
10.3. To influence the rhetorical situation, deploy framing devices.
10.4. To wage all-out forensic battle, fight on all three fronts of the Rhetorical Triangle:
10.4.1. Ethos
10.4.2. Logos
10.4.3. Pathos

11. Logic & Logical Fallacies

11.1. Why study logic?
11.2. Get acquainted with logical fallacies.