HOW TO WRITE A LEGAL BRIEF
by Arlene A. Smith-Scott, JD
A legal brief is a persuasive argument that intertwines the law with how it was incorrectly applied by the judiciary that issued the order that is being appealed. Each appeal is unique. It must be fact based with a thorough explanation of the circumstances that arose that created the lawsuit. A legal brief is made up of two sections. The first is the legal argument. The second is the appendix/abstract. The person who is appealing the order is the Appellant.
PRELIMINARY ISSUES
There are procedural steps that must be taken prior to the legal brief. Was the order issued considered final? If it is not a final order is there an exception to the requirement. You must know the answer to that question prior to taking the next step.
A notice of appeal must be filed, and the appropriate fees paid. The Court will issue a scheduling order which is the required deadlines If mediation is issued, there will be a date designated. There will be deadlines for the completion of the Appellants’ Brief, Appellees’ Brief and Reply Brief. Each jurisdiction will require a specified color for the front cover of each Brief unless it is electronically filed. However, paper copies must be provided to the Court meeting the guidelines. Check the appellate rules for your jurisdiction.
UNDERSTANDING THE LAW?
Remember, an appeal is an argument as to why you believe the order issued reflected judiciary abuse or error in the application of the law. Most appeals are not overturned due to the difficulty in proving an error or abuse. Let’s take some steps to develop a proper strategy.
Identify the law that you believe the Court did not apply properly. Begin with the procedural issues and work towards the substantial issues. For Example, is service of process or jurisdiction an issue? What are the rules, codes or statutes that govern that issue. If the substantive law was based on contracts or torts, you must break down each element of the law. Fit the facts of the case into the elements.
Speaking of the facts, did you get a copy of your transcripts? Review each page of the transcripts for statements that were made by the Judge, Opposing Counsel and Legal Counsel as to the rule of law, jury instructions, objections, etc. Review what was admitted into evidence, what was excluded, and why. Prepare a summary of what went wrong and why. As you are doing so, please make sure you keep a record of the page and line number, you will need that for the Statement of the Facts or the Statement of the Case.
After reviewing your facts, you must find case law that supports your theory of the case. There are a number of resources that can be of benefit to you. For example, Casetext and Thomson Reuters, both offers a free trial. Westlaw and Lexis are old favorites.
We will be adding additional blogs for the purpose of assisting you on your journey!
