Briefs

Briefs in the United States

Introduction to Briefs

Briefs (Appeals)

This section introduces, discusses and describes the basics of briefs. Then, cross references and a brief overview about Appeals is provided. Finally, the subject of Civil Procedure in relation with briefs is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Judges Reading briefs on Tablets

In an article, Daniel Sockwell, “Writing a Brief for the iPad Judge”, said that “more and more judges are reading briefs primarily on iPads or other tablets…. The Fifth Circuit judiciary reads the majority of their briefs on iPads”. The author’s suggestions are:

“Lawyers who expect a brief to be read on an iPad should try to avoid footnotes. One of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage. However, this advantage is lost if footnotes require the reader to constantly scroll to the bottom of the page for citations or substantive material. Worse, the extra scrolling raises the risk that the footnotes won’t be read at all, already a concern with substantive footnotes.

Next, lawyers should carefully consider what font to use in a brief that may be read on an iPad. Fonts designed for screen reading are significantly different from those designed to be printed. Most importantly, quality printers print at a much higher resolution—even the retina iPad display has only 264 pixels per inch, less than half the dots per inch of a quality laser printer. As a result, some of the best print fonts can become jagged or difficult to read at screen resolutions, especially when readers zoom in.

This point should not be oversold: Matthew Butterick, author of Typography for Lawyers, notes that “though the iPad has fewer pixels per inch than a laser printer, each of those pixels can be displayed in shades of gray (unlike the laser printer, which has to assemble multiple black pixels to make gray).” This brings the effective resolution of an iPad closer to print, at least in some circumstances. But the bottom line is that selecting a font for a document that may be read on an iPad is even more complicated than for a print document (…)

Perhaps most importantly, briefs written for iPads should avoid the traditional legal hierarchical headings: Part I, Section A, Subsection 1, etc. When flipping though a paper brief, a reader can physically feel if they are near the beginning or end and correctly guess if the Section A they are reading is I.A or VII.A. For digital readers, however, every A looks the same.

This provides a strong reason to depart from tradition and use “scientific” numbering: Part 1, Section 1.1, Subsection 1.1.1. While some argue that scientific hierarchical headings are always superior, when writing for the screen, the case is even stronger. (As an added advantage, the scientific hierarchy avoids the confusion about what to call a “ii”). The same considerations, according to Ilene Strauss, Director of Columbia Law School’s Legal Writing Program, also emphasize “the need to use effective headings,” which can help “keep a reader on track within a smaller screen.”

While adapting to the new medium, lawyers should check their local rules, since some of the better stylistic changes may actually be prohibited. For example, Eugene Volokh, author of Academic Legal Writing, notes that “double spacing lines would be especially bad on iPads, because it would halve the number of lines that can be seen at once on the (already fairly small) screen” but is nevertheless required by many court rules, at least for now.

Matthew Butterick agrees that current court rules may limit iPad-appropriate style and suggests that “the advent of iPad reading [could] be the impetus for courts to set aside their existing document-layout rules, most of which are held over from the typewriter era.” We can certainly hope — and, one day, legal writing could even embrace more dramatic possibilities of digital briefs. But until then, lawyers should know how judges read their briefs and should write with their newly digital judicial audience in mind.”

Briefs: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Briefs. This part provides references, in relation to Briefs, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Briefs by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Briefs and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Briefs or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Briefs and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Briefs. Finding these decisions can be challenging. In many cases, researchers about Briefs should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Briefs when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

10 thoughts on “Briefs”

  1. SoronelHaetir

    What I find amazing about reading such documents on any electronic device is that the writer even needs to care what font the thing is displayed in. Electronic documents should be able to eschew printed formatting entirely and display the document in the font, size and color combination that is comfortable to the reader. Such determinations should be up to the reader not the writer.

    And I agree with the footnote bit as well. I am blind and it is incredibly difficult to follow long intermixed passages when you have to listen to the entire thing. Eyes have a wonderful ability to easily skip things that the viewer doesn’t find relevant that ears lack.

  2. Mr. Guest

    This advice is based on a certain theory of persuasion and assumptions about how judges decide cases that is contrary to my experience interning for judges and appearing before them regularly. It posits that there is some sort of experience of reading a brief, where the judge reads it like he might read a novel and gets swept up in it. Free from typos and a distracting typeface, he loses himself in the brief, every so often nodding yes in agreement with a point. By the end, you’ve made him feel good, feel persuaded and you win. On the other hand, your brief is sloppy- it has typo’s, awkward sentences that he needs to re-read to get your meaning. He shakes his head, grumbles and generally gets annoyed. And then, he rules against you.

    Let me get this out of the way- it is better to present a brief like the former, not the latter.

    That said, I give judge’s more credit. In my experience, judges work very hard to drill down to legally significant facts and issues. They don’t get swept up in a persuasive brief. They have the brief, pleadings and maybe some evidentiary exhibits out in front of them and they work very hard to get things right so that they don’t get reversed. They have their own framework of thinking. This is not to say, you can’t persuade a judge, but that too much emphasis is placed on things like typeface. I think that is because at the end of the day, typeface is easy. Facts on the other hand, obtaining them, developing them and presenting them- that is hard. And that is what most lawyers are bad at. We are trained from the appellate decision point of view, reading cases in law school, briefing them. Then as practitioners, after some grunt work, you research, write sections of briefs, and then entire briefs. But interacting with the clients and really getting your fingers dirty- there isn’t a whole lot of training for that and young lawyers are hidden from it.

    So yes, write briefs that won’t tick off the judge, but that is only a tiny, tiny part of what being a good lawyer is about.

  3. After 10 years of practice, I strongly agree that the persuasive value of formatting and quality writing are highly overrated. Obviously it’s better to have a well written, nicely formatted brief that’s free of typographical errors (if nothing else because it makes the client feel like they are getting their money’s worth), but it certainly isn’t uncommon to see parties prevail with briefs that are about one step above being written in crayon on napkins.

  4. Theodorito

    If a sympathetic party’s (and the party might be become sympathetic because he has such a shitty attorney) attorney files a poorly written brief, the judge takes it upon herself to examine the law before deciding the case. After all, the judge wants to get it right, right? But does the judge do the legal research and arrive at a conclusion? No. He assigns that to her clerk, who knows the judge, knows how she thinks, how she likes positions presented, and what would be most persuasive to her. Thus, the clerk and his memo becomes a de facto surrogate for the shitty attorney and shitty brief, who turns out not to be so shitty because his client ends up winning the case on the strength of the clerk’s research and memo.

    I don’t know how to resolve this problem (or if it’s even a problem), but it’s laughable to me that style matters even close to as much as these legal typographers claim, unless you’re briefing at the absolute highest levels (SSC or USSC) in very important cases. My experience simply doesn’t comport with the claim that poorly written briefs result in fewer favorable decisions.

  5. The real processing and checking of the brief is often the job of the clerk…but as a former clerk, I’ll put in a word for writing in a way that keeps the clerk on your side.

    Typos happen, some degree of puffery is a necessity in the adversary system, etc., but clear organization, citations to caselaw and the record that actually check out when I go to check them, and a minimum of overblown language (particularly when criticizing the other side…most attacks just make the attacker look silly) went a long way towards making me think I could generally trust the attorney’s representations. Of course I still checked everything, and I often recommended ruling in favor of a party whose briefing was extremely annoying but who was still right (though often not for the reasons they thought or focused on), but making the clerk your friend is still a smart move.

  6. At the end of the day ask yourself this, “Have I made it as easy as possible for the court to do what I want?” Don’t do anything that distracts from that (least I spend the next 10 minutes wondering why you felt the need to quote Genesis 4 times in a Markman brief).

    Certainly, though, the job is a lot about getting to the right answer yourself, then checking your work (especially since neither side might have it exactly right). And so, just as if you wore a mustard-stained tie in court, I try not to hold the client responsible for your typos, promiscuous use of italics/exclamation points, frequent misuse of forfeit/waive, the fact it took me an hour to realize that you meant the *other* exhibit B, or that your brief is littered with brush script.

    That said, there are cases where, at least in the time that I have, the answer is a toss-up: I have to buy either what A is saying or what B saying, and I haven’t a clue who’s right on the law (yes, technically, it’s not my decision, blah blah blah). Honestly, if I have to bet, I’m probably picking the more professional lawyer. (The same, incidentally, goes for the lawyer who decides to forego losing arguments vs. the lawyer who tosses in what he must knows is crap just to stuff the brief: Personal credibility doesn’t help often, but it can be a tie-breaker in close calls.)

  7. Three cheers for tablets if they help kill off footnotes in legal writing. I’m not sure about the merits of “scientific numbering” of sections, but the article rightly notes that lawyers should be better at using persuasive headings.

    As for fonts, I find Century Schoolbook, Palatino, and Georgia work well on a tablet. I’m sure there are other good ones out there. Sadly, some state courts still require Times New Roman.

  8. Kill footnotes?! I agree that some overuse them, but they’re absolutely necessary sometimes to avoid destroying a strong paragraph with long string-cites, particularly in those (admittedly very rare) instances when there’s contrary authority on point that you’re ethically obligated to include, with which it’s often advisable to include a short distinguishing description of.

  9. If the citations are important enough to care about, their presence in a footnote should be a non-issue. Once the judge decides to read the underlying cases, the minimal additional effort associated with footnotes shouldn’t matter. That being said, I agree that citations in footnotes should be avoided.

  10. One thing I’d add is that an iPad judge is typically reading your brief on the same device that he also uses to read the newspaper or see what his kids are up to or whatever. I think the temptation to do some on-the-spot legal or factual research while reading your brief is hard to resist–harder than it would be were the iPad judge sitting at his reading desk leafing through your brief and writing questions to investigate later when he talks to his clerk or goes back to the desk where his computer sits.

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