New York State Bar Association
Committee on Children and the Law
BRIEF WRITING
By Cynthia
Feathers, Esq.
_____________________________________________________
I. Before Writing
the Brief
A. Review
and digest the record.
B. Identify
viable issues.
1. Not based on matters outside the record.
2. Based on
the sufficiency or insufficiency of evidence.
3. Errors
preserved by objections or arguments.
4. Errors
affecting a substantial right of a party.
C. Outline key
facts to include in the Statement of Facts.
D. Do thorough legal research.
1. Expand on
what was done in the court below.
2. Read
cases cited in trial memoranda and decisions.
3. Review statutes,
Practice Commentaries, and treatises.
4. Find controlling
authority.
5. Identify
critical analogous and distinguishable cases.
6. Outline
key law and shepardize all cases.
II. Statement
of Facts
A. Often the most important section of the
brief.
B. Do not write
this section until you have chosen your issues.
C. Present only facts that give context or
support your argument.
D. Provide a cite to the record for every statement.
E. Have a
strategy to shape facts chronologically or thematically.
F. Emphasize
favorable facts and deemphasize unfavorable ones.
G. Label the
parties simply and consistently.
A. Only include strong points.
B. Usually start
with the strongest point.
C. Include five
sections:
1. Introduction
summarizing the argument and relief sought.
2. Controlling
authority as to standards and substantive law.
3. Critical
analogous cases.
4. Critical
distinguishable cases.
5.
Conclusion including policy arguments.
D. Sparingly use string cites,
block quotes, and repeated facts.
E. Do not add any new facts.
IV. Editing
A. Add other
sections:
1. Preliminary
Statement.
2. Questions
Presented.
3. Summary
of Argument.
4. Conclusion.
5. Cover,
Table of Contents, and Table of Authorities.
B. Set brief
aside to achieve a fresh view for editing.
C. Tighten and shorten
the brief.
D. Add subheads
and topic sentences to guide the reader.
E. Break up long
paragraphs and sentences.
F. Use plain
language, the active voice, and a dignified tone.
G. Ensure that
the brief is accurate, cogent, and compelling.
H. Conform the
brief to Court rules.
I. Consider
using Times Roman 14-point type.
J. Ask someone
else to proofread your brief.
V. Respondents’
and Reply Briefs
A. Respondents’
briefs should stand alone.
B. Reframe the issues and make an affirmative statement.
C. Consider advancing an alternate ground for
affirmance.
D. Review appellant’s
cites and distinguish ones that matter.
E. Reply briefs do
not repeat appellant’s main brief, but should:
1. Pithily respond to objectionable points in
respondent’s brief.
2. Help sharpen the debate for oral argument.
Return to Program Announcement
Last
updated January 12, 2010
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