Write a Better Legal Brief in Less Time

What is a legal brief?

A brief is a written legal argument presented to the court with the purpose of convincing the judge to rule in favor of your client.

A brief can take various forms based on the nature and stage of the litigation. It can be a memorandum of law regarding a motion, an appellate brief on whether the trial court’s ruling should be upheld, or a mediation statement to resolve a matter.

For law students, “briefing a case” means to write a concise summary of a case, including the parties involved, the issues presented, the judge’s decision, and an analysis of which arguments succeeded.

How do you research a legal brief?

A key step before drafting a brief is doing thorough legal research. This involves understanding the issues at hand, identifying relevant cases, and reading example briefs.

Investigate the issue

Start with secondary sources to save time and orient yourself to the area of the law and key issues. Use Bloomberg Law’s Practical Guidance for overviews and checklists to get started quickly. Source citations are included in all Practical Guidance, and you can filter in Bloomberg Law’s Points of Law, Smart Code®, and court opinions database to get the jurisdiction-specific cases or statutes you need. You can also view the litigation reference library for additional sources such as treatises that are organized by topic.

Conduct case law research

Search Bloomberg Law to get your bearings on an issue before diving into reading the cases in full. Points of Law uses machine learning to identify key legal principles expressed in court opinions, which are easily searchable by keyword and jurisdiction. The tool helps you quickly find other cases that have expressed the same point of law, and directs you to related points of law that might be relevant to your research. It is automatically updated with the most recent opinions, saving you time and helping you quickly drill down to the relevant cases.

Find example briefs

Search the firm’s internal document system for recent examples, or research dockets for examples of your firm’s filings in similar cases. You can either look up a specific lawyer’s filings in Bloomberg Law, or you can search dockets for a lawyer’s name or the specific type of filing. If possible, look for filings before the same judge so you can get a quick check on rules and procedures to be followed.

If you are responding to an opponent’s brief, simply upload the opposing side’s brief into Bloomberg Law’s Brief Analyzer tool, and it will generate a report of the cited authorities and arguments contained in the brief. It will also point you directly to relevant cases, Bloomberg Law’s AI-powered Points of Law, and Practical Guidance to jump-start your research.

How do you write a legal brief?

Once you are ready to write, there are three elements to consider: structure, style, and substance.

Legal brief structure

While there is no hard and fast rule about the structure of a brief, it should contain the following elements:

• Introduction to your position.
• Summary of the facts in the case.
• Arguments in support of your position with cited case law.

The goal of a legal brief is not only to offer the best legal and factual support for your position, but also to present your points in a way that the reader can easily understand.

“You should make sure the principal points or major headings of your brief are strategically organized,” write the authors of Bloomberg Law’s Professional Perspective, Persuasive Brief Writing. “Sometimes that will mean leading with your strongest point. In other cases, that will mean leading with an issue that logically precedes the other issues (such as a jurisdictional issue like standing). Whatever your particular case requires, the key is making sure your arguments have a logical flow that is apparent to the reader.”

Write your brief with style

According to the authors of Bloomberg Law’s Professional Perspective, Persuasive Brief Writing, there are several factors to consider when it comes to writing style, including:

• Keep it short and simple. Strive to make your sentences crisp and direct. Often, the solution is as simple as breaking up a long sentence into a number of shorter, sharper sentences. Keep your language as ordinary and jargon-free as you can without losing precision. Write sentences and use language that any intelligent reader – whether a federal judge or a layperson – will readily understand.
• Be tough, not mean. Say directly when your adversary is wrong on the law or the facts, and push back when the other side distorts your position. But pick your battles thoughtfully. If you spend most of your brief criticizing the other side over minor or peripheral issues, then the judge will suspect your core arguments are weak. And be polite. Your point that the other side has it backwards will be all the more powerful if made firmly but respectfully, and without hyperbole.

Substance of a legal brief

Drafting a strong brief means making strategic choices about substantive citation of case law. Here are tips from the authors of Persuasive Brief Writing for using cases effectively:

• Resist string cites. It can be tempting to show how many authorities agree with you. The problem is that too many cites tends to discourage the reader from carefully engaging with any of the authorities at all. Unless your point is to establish that some number of jurisdictions has decided an issue (e.g., “Every circuit to have considered this question has . . .”), consider discussing in depth a few cases that you believe are really decisive.
• Don’t be afraid of out-of-jurisdiction cases. If there is no controlling authority on the relevant question in your jurisdiction, but there is an opinion from another jurisdiction that is great for your position, you should probably use it. But you need to lay the groundwork for it by explaining why the persuasive authority accords with principles that already govern in your jurisdiction.
• Deal appropriately with bad case law. In addressing adverse authority, you will often want to explain why the bad authority does not apply to the facts or circumstances of your case. But don’t be afraid of saying when a decision that is not binding in your jurisdiction is wrong.

Why does writing legal briefs take so much time?

Lawyers are often balancing time and completeness, and brief writing is no different. One point of tension is figuring out when research is complete.

That determination has become harder to make, as online legal information grows in volume and complexity. The plethora of data is difficult to track and increases the risk of omitting an important case, statute, or agency ruling from brief citations.

These factors further strain an already challenging environment, in which material cited in opposing counsel briefs must be cross-referenced with original sources. However arduous, this exercise remains essential to pinpoint questionable authority citations and ellipses that may distort original legal argument intent.

Among other time-intensive tasks, “Hyperlinking to precedents [made] brief preparation more cumbersome,” said Tim Berg, business litigation director at Fennemore Craig.

Why is it important to expedite legal brief writing?

Litigators often list drafting motions and briefs as one of their most time-consuming tasks, but spending too much time on this kind of work can cost the firm.

“Law firms that continue to rely on traditional legal research methods in drafting and responding to motions will be at a significant disadvantage going forward,” said David Kleiman, product development manager at Bloomberg Law.

“Clients are no longer willing to pay for hours of legal research, when other firms are utilizing the latest cutting-edge technology to get work done more efficiently,” Kleiman said.

How can technology make it easier to write and review legal briefs?

Where appropriately implemented, technology can maximize legal research and tilt the scales in ways that win – efficiently. There are two primary benefits to using technology to write and review briefs.

Increased efficiency

A significant benefit of research platforms and analytics tools like Bloomberg Law is increased efficiency. Attorneys read through legal opinions and make connections every day, but there is a limit to how much one person can read and comprehend. Modern research technology can make associations instantaneously. This technology helps attorneys sift through thousands of cases quickly and comprehensively. These products can also help aggregate or summarize data in a way that is more useful.

Automating parts of the research process frees up time and effort for other activities that benefit the client and makes legal research and writing more efficient.

Bloomberg Law’s tools like Points of Law, Docket Key, and Brief Analyzer can also increase efficiency, especially when narrowing your research to confirm that you found everything on point. In the past, attorneys had to spend many hours (and lots of money) running multiple court opinion searches to ensure they did not miss a case on point. Now, there are tools that can dramatically speed up that process.

For example, running a search over Points of Law can immediately direct you to other cases that discuss that same legal principle. Or, you can search dockets to find briefs filed in similar cases and see what cases those briefs cite.

Bloomberg Law’s Brief Analyzer tool uses machine learning to quickly analyze briefs and link that analysis to relevant legal content. In other words, it quickly associates legal content on Bloomberg Law’s platform with the arguments and authorities in a brief, permitting the user to spot holes, review citations and quotes from authority for accuracy, find or check authority, and jump-start a response.

Improved quality

Because a digital research platform like Bloomberg Law can sift through so much more legal data than a human can, there is an increase in the breadth and quality of the research. These products can make connections and associations that an attorney might not think to make and can overturn stones an attorney might not think to turn over. Digital tools help instill confidence that more relevant cases are reviewed than ever before.

An attorney can use Points of Law to find cases that cite that same legal proposition or search dockets to efficiently find similar briefs. An attorney can also upload an opponent’s brief into Brief Analyzer and instantly see whether the cited cases are good law, as well as generate a report with links to suggested content that the attorney may not have thought to research. All of these tools together increase the quality and breadth of an attorney’s research.

[See how Brief Analyzer applies the power of AI to expedite your review of cited authorities and identify other relevant documents – all so you can make your best case.]