Difference between revisions of "Brief (law)" - New World Encyclopedia
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==History of the users of the brief== | ==History of the users of the brief== | ||
| − | The historical difference between the two | + | The historical difference between the two professions—and the only essential difference in [[England and Wales]] today—is that a solicitor is an [[attorney]], which means they stand in the place of their client for legal purposes, and may conduct [[litigation]] by introducing briefs to the court, making applications to the court, writing letters in litigation to the client's opponent and so on. A barrister is not an attorney and is forbidden, both by law and by professional rules, from conducting litigation; however, a barrister may write the brief that is introduced by the solicitor. This difference in function explains many of the practical differences between the two professions. |
On the other hand, many countries such as the [[United States]] do not observe a distinction between barristers and solicitors. Attorneys are permitted to write and introudce birefs as well as conduct all aspects of litigation and appear before those courts where they have been admitted to the bar. | On the other hand, many countries such as the [[United States]] do not observe a distinction between barristers and solicitors. Attorneys are permitted to write and introudce birefs as well as conduct all aspects of litigation and appear before those courts where they have been admitted to the bar. | ||
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A brief is also sometimes called a '''memorandum of law''', although that term is also used to describe an internal document in a [[law firm]] in which an attorney attempts to analyze a client's legal position without arguing for a specific interpretation of the law. | A brief is also sometimes called a '''memorandum of law''', although that term is also used to describe an internal document in a [[law firm]] in which an attorney attempts to analyze a client's legal position without arguing for a specific interpretation of the law. | ||
===Amicus curiae=== | ===Amicus curiae=== | ||
| − | '' | + | ''[[Amicus curiae]]'' (plural ''amici curiae'') is a [[legal Latin]] phrase, literally translated as "friend of the court," that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a [[brief (law)|brief]] - testimony that has not been solicited by any of the parties - or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court. |
The situation most often noted in the press is when an [[interest group|advocacy group]] files a brief in a case before an [[appellate court]] to which it is not a [[litigant]]. Appellate cases are normally limited to the factual record and arguments coming from the [[lower court]] case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, ''amicus curiae'' briefs are a way to introduce those concerns, so that the possibly broad legal effects of court decisions will not depend solely on the parties directly involved in the case. | The situation most often noted in the press is when an [[interest group|advocacy group]] files a brief in a case before an [[appellate court]] to which it is not a [[litigant]]. Appellate cases are normally limited to the factual record and arguments coming from the [[lower court]] case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, ''amicus curiae'' briefs are a way to introduce those concerns, so that the possibly broad legal effects of court decisions will not depend solely on the parties directly involved in the case. | ||
===Brandeis brief=== | ===Brandeis brief=== | ||
| − | Louis Dembitz Brandeis was an American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief. In the 1908 case, Muller v. Oregon, Louis Brandeis, acting as a litigator, collected empirical data from hundreds of sources. In what became known as the Brandeis Brief, the report provided social authorities with information on the health impacts of long working hours on women. This was the first brief in the United States that relied on analysis of factual data rather than pure legal theory to argue a case, and changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations in cases affecting the health or welfare of classes of individuals. This model was later successfully used in Brown v. Board of Education to demonstrate the harmful psychological effects of segregated education on African-American children. | + | [[Louis Dembitz Brandeis]] was an American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief. In the 1908 case, Muller v. Oregon, Louis Brandeis, acting as a litigator, collected empirical data from hundreds of sources. In what became known as the Brandeis Brief, the report provided social authorities with information on the health impacts of long working hours on women. This was the first brief in the United States that relied on analysis of factual data rather than pure legal theory to argue a case, and changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations in cases affecting the health or welfare of classes of individuals. This model was later successfully used in Brown v. Board of Education to demonstrate the harmful psychological effects of segregated education on African-American children. |
==Purpose of a brief== | ==Purpose of a brief== | ||
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==Contemporary modifications for a brief== | ==Contemporary modifications for a brief== | ||
===Electronic legal briefs=== | ===Electronic legal briefs=== | ||
| − | '''Electronic Legal Briefs''' (a/k/a "e-briefs" or "digital briefs" are renditions of an ordinary electronic format (usually Adobe PDF) [[brief]], with the exception of [[hyper-link]]ed exhibits instead of standard [[footnote]] notation. While electronic filing of briefs is now required by some state and federal courts, they do not | + | '''Electronic Legal Briefs''' (a/k/a "e-briefs" or "digital briefs" are renditions of an ordinary electronic format (usually Adobe PDF) [[brief]], with the exception of [[hyper-link]]ed exhibits instead of standard [[footnote]] notation. While electronic filing of briefs is now required by some state and federal courts, they do not require—and often are not especially accommodating to—hyperlinked e-briefs. |
E-briefs are also used for summation of [[trial]] exhibits and testimony. As noted above, e-briefs are typically created in Adobe Acrobat, and provided on CD-Roms to the court for filing. The electronic brief should be used as an extension of the standard brief, when specific points need to be made and to provide information contained in cites, exhibits, and other types of evidence, readily to the reader of the brief. | E-briefs are also used for summation of [[trial]] exhibits and testimony. As noted above, e-briefs are typically created in Adobe Acrobat, and provided on CD-Roms to the court for filing. The electronic brief should be used as an extension of the standard brief, when specific points need to be made and to provide information contained in cites, exhibits, and other types of evidence, readily to the reader of the brief. | ||
Revision as of 16:49, 13 October 2007
A brief or factum (latin for "act" or "deed") is a written legal document used in various legal adversary systems in America that is presented to a court arguing why the party to the case should prevail. In England and Wales, the phrase refers to the papers given to a solicitor (attorney) when they are instructed. Yet, whether in the United States, England and Wales, or other parts of the world, a brief is a roadmap of legal principles and arguments which contain the content and form for either the plaintiff or defendant in a case. The content and form comprise the unity of the legal philosophy for each side and is similar in concept to the Unificationist ideal of harmony and cooperation beyond boundaries. The brief supplies the initial information to the court to allow each party to engage within a neutral forum so that human barriers are overcome and a legal conclusion will bring about cooperation and peace.
History of the users of the brief
The historical difference between the two professions—and the only essential difference in England and Wales today—is that a solicitor is an attorney, which means they stand in the place of their client for legal purposes, and may conduct litigation by introducing briefs to the court, making applications to the court, writing letters in litigation to the client's opponent and so on. A barrister is not an attorney and is forbidden, both by law and by professional rules, from conducting litigation; however, a barrister may write the brief that is introduced by the solicitor. This difference in function explains many of the practical differences between the two professions.
On the other hand, many countries such as the United States do not observe a distinction between barristers and solicitors. Attorneys are permitted to write and introudce birefs as well as conduct all aspects of litigation and appear before those courts where they have been admitted to the bar.
Types of briefs
Trial briefs
When they are presented at trial to resolve a disputed point of evidence they are referred to as trial briefs.
Appellate briefs
Alternately, at the appellate level they are referred to as appellate briefs.
Legal brief
A legal brief can also be used as part of arguing a pre-trial motion in a case or proceeding.
Memorandum of law
A brief is also sometimes called a memorandum of law, although that term is also used to describe an internal document in a law firm in which an attorney attempts to analyze a client's legal position without arguing for a specific interpretation of the law.
Amicus curiae
Amicus curiae (plural amici curiae) is a legal Latin phrase, literally translated as "friend of the court," that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief - testimony that has not been solicited by any of the parties - or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court.
The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court to which it is not a litigant. Appellate cases are normally limited to the factual record and arguments coming from the lower court case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, amicus curiae briefs are a way to introduce those concerns, so that the possibly broad legal effects of court decisions will not depend solely on the parties directly involved in the case.
Brandeis brief
Louis Dembitz Brandeis was an American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief. In the 1908 case, Muller v. Oregon, Louis Brandeis, acting as a litigator, collected empirical data from hundreds of sources. In what became known as the Brandeis Brief, the report provided social authorities with information on the health impacts of long working hours on women. This was the first brief in the United States that relied on analysis of factual data rather than pure legal theory to argue a case, and changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations in cases affecting the health or welfare of classes of individuals. This model was later successfully used in Brown v. Board of Education to demonstrate the harmful psychological effects of segregated education on African-American children.
Purpose of a brief
The brief or memorandum establishes the legal argument for the party, explaining why the reviewing court should affirm or reverse the lower court's judgment based on legal precedent and citations to the controlling cases or statutory law. When it is a trial or motion brief, the brief argues that the court should rule based on previous decisions of controlling courts. In either case, the brief may also include policy arguments and social statistics when appropriate; for example if the law is vague or broad enough to allow the appellate judge some discretion in his decision making, an exploration of the consequences of the possible decision outside of legal formalism may provide guidance. Such arguments may also support a legal argument when the purpose of the law at issue may be clear, but the particular application of that law in service of that purpose is in dispute.
The party filing the appeal — called the petitioner or appellant, who is attempting to convince the appellate court to overturn the lower court decision — is responsible for submitting his brief first. The responding party — the respondent or appellee, who is satisfied with the lower decision — then files a reply brief within a specified time. Depending on the local rules of procedure, the court may allow or even require the parties to then file additional replies to the opposing party's briefs, multiplying the back-and-forth responses of the parties. Depending on local rules, the court may then decide the case purely based on the submitted briefs or may hear oral argument by the parties.
Parts of a brief
In American courts, the brief typically has the following parts: a table of contents; a table of authorities listing the cases, statutes, and regulations that are cited; a presentation of the issues under review by the court, usually in only one sentence if possible; a statement of the case that presents the relevant facts and the previous history of the case in the lower courts; a summary of the legal standard of review that the appellate court should use in evaluating the decision of the lower court; a summary of the party's argument; and the full discussion of the legal and/or policy arguments explaining why the party believes it should win the case, which will be the most lengthy portion of the brief. The brief may also be accompanied by an appendix that includes copies of the lower court opinions and other documents or court opinions cited in the brief. The particular required format of briefs is a matter of local court procedural rules.
In North American law schools, students usually study historical cases by "briefing" them. Law school briefs are shorter than court briefs but follow a similar structure: presentation of issue, presentation of facts, presentation of legal and policy arguments and presentation of outcome. In the United States, the practice of briefing cases for study began at Harvard Law School in the fall of 1870 with the introduction of the case method of teaching by Professor Christopher Columbus Langdell. Case briefing is a widely accepted pedagogical method among law professors today.
Contemporary modifications for a brief
Electronic legal briefs
Electronic Legal Briefs (a/k/a "e-briefs" or "digital briefs" are renditions of an ordinary electronic format (usually Adobe PDF) brief, with the exception of hyper-linked exhibits instead of standard footnote notation. While electronic filing of briefs is now required by some state and federal courts, they do not require—and often are not especially accommodating to—hyperlinked e-briefs.
E-briefs are also used for summation of trial exhibits and testimony. As noted above, e-briefs are typically created in Adobe Acrobat, and provided on CD-Roms to the court for filing. The electronic brief should be used as an extension of the standard brief, when specific points need to be made and to provide information contained in cites, exhibits, and other types of evidence, readily to the reader of the brief.
Currently these briefs are expensive as they are very time consuming to create. The price should drop considerably as tools become available to assist in creating these briefs on the desktop. Services and briefing tools can be found on the web by searching for "digital briefs," "electronic briefs," or "e-briefs." Several firms in the legal support industry provide electronic legal brief services.
Instanter filing
Filing instanter refers to the procedure for filing a legal pleading out of rule or beyond a deadline. Literally, instanter means "now." Generally in U.S. trial and appellate courts (both federal and state) filings instanter are accepted as a matter of course. However the U.S. Supreme Court and many state supreme courts will not accept filings instanter and may even sanction an attorney for trying.
ReferencesISBN links support NWE through referral fees
- Campos, Paul, Diaster and disgrace - legal brief - Michael Brown is clearly unqualified to head FEMA. But what exactly is he qualified for?, NY: The Republic Pub. Co., 2005. OCLC 99137760
- Garner, Bryan A., The winning brief: 100 tips for persuasive breifing in trial and appellate courts, NY: Oxford University Press, 1999. ISBN 0-195-12808-7
- Texas Prisoners Labor Union, Legal brief, Waco, TX: Texas Prisoners Labor Union, 1997. OCLC 37564817
- University of South Florida, Pre-law Scociety, Legal brief, Tampa, FL: University of South Florida, serial publication. OCLC 44162649
External links
- U.S. Law School Information - Site visitors are taught law school case briefing technique utilizing the Tort case Farwell v. Keaton. Retrieved September 25, 2007.
Credits
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