A brief or factum (Latin for "act" or "deed") is a written legal document used in various adversarial legal systems in countries using common law. The brief is presented to a court arguing why the party to the case should prevail. In England and Wales, the phrase refers to the papers prepared by a solicitor to be given to a barrister when they are instructed and given authority to act for the client in all matters which the litigation involves. Yet, whether in the United States, England and Wales, or other parts of the world, a brief is a road map 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. The brief supplies the initial information to the court to allow each party to engage within a neutral forum so that barriers of self-centeredness and individual thinking are overcome, and a legal conclusion will bring about cooperation and peace.
The brief was probably so called from its at first being only a copy of the original writ. In England and Wales, a barrister is the one upon whom devolves the duty of taking charge of a case when it comes into court, but all the preliminary work, such as the drawing up of the case, serving papers, marshaling evidence, and so forth, is performed by a solicitor. A "brief," therefore, contains a concise summary for the information of counsel of the case which he has to plead, with all material facts in chronological order, and frequently such observations thereon as the solicitor may think fit to make, the names of witnesses, with the "proofs," that is, the nature of the evidence which each witness is ready to give, if called upon. The brief may also contain suggestions for the use of counsel when cross-examining witnesses called by the other side. Accompanying the brief may be copies of the pleadings, and of all documents material to the case.
The historical division between the two professions in England and Wales is between solicitors who represent and advise clients, and a barrister, who is retained by a solicitor to advocate in a legal hearing or to render a legal opinion. Solicitors have more direct contact with the clients, whereas barristers often only become involved in a case in order to provide any advocacy needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely, if ever, instructed by clients directly. On the other hand, many countries do not observe a distinction between barristers and solicitors. Attorneys in such countries are permitted to write and introduce briefs as well as conduct all aspects of litigation and appear before those courts where they have been admitted to the bar.
In the United States, the word "brief" has, to a certain extent, a different meaning, a brief in its English sense not being required, for the American attorney exercises all the functions distributed in England between barristers and solicitors. A lawyer sometimes prepares for his own use what is called a "trial brief" for use at the trial. This corresponds in all essential particulars to the "brief" prepared by the solicitor in England for the use of counsel.
The more distinctive use of the term in America is, in the case of the brief, "in error or appeal" before an appellate court. This is a written or printed document, varying according to circumstances, but embodying the argument on the question affected. Most of the appellate courts require the filing of printed briefs for the use of the court and opposing counsel at a time designated for each side before hearing. In the rules of the United States Supreme Court and circuit courts of appeals, the brief is required to contain a concise statement of the case, a specification of errors relied on, including the substance of evidence, the admission or rejection of which is to be reviewed, or any extract from a charge excepted to, and an argument exhibiting clearly the points of law or fact to be discussed. This form of brief, it may be added, is also adopted for use at the trial in certain states of the Union which require printed briefs to be delivered to the court.
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 Christopher Columbus Langdell. Case briefing is a widely accepted pedagogical method among law professors today.
Types of briefs
A legal brief can be used as part of arguing a pre-trial motion in a case or proceeding.
A brief presented at trial to resolve a disputed point of evidence is referred to as a trial brief.
Briefs used to argue for and against an appeal at the appellate level to reconsider the judgment of a lower court are referred to as appellate briefs.
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 (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.
Louis Dembitz Brandeis was an American litigator and Supreme Court Justice. In the 1908 case, Muller v. Oregon, Brandeis, acting as a litigator, worked alongside women's rights activists Florence Kelley and Josephine Clara Goldmark collecting empirical data from hundreds of sources. In what became known as the "Brandeis Brief," he submitted a legal brief containing sociological information on the issue of the impact of long working hours on women. This Brandeis Brief was a 113 page document with statistical data, laws, journal articles, and other material. 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 (1954) to demonstrate the harmful psychological effects of segregated education on African-American children.
Contemporary modifications for a brief
Electronic legal briefs
Electronic legal briefs (also known as "e-briefs" or "digital briefs") are renditions of an ordinary electronic format (usually Adobe PDF) briefs, 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. Several firms in the legal support industry provide electronic legal brief services.
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. 2005. Disaster and Disgrace—Legal Brief—Michael Brown is Clearly Unqualified to Head FEMA. But What Exactly is he Qualified For? New York: The Republic Pub. Co.
- Garner, Bryan A. 1999. The Winning Brief: 100 tips for Persuasive Briefing in Trial and Appellate Courts. New York: Oxford University Press. ISBN 0-195-12808-7
- Texas Prisoners Labor Union. 1997. Legal brief. Waco, TX: Texas Prisoners Labor Union.
- University of South Florida, Pre-law Scociety. Legal Brief. Tampa: University of South Florida.
All links retrieved February 11, 2022.
- U.S. Law School Information - Site visitors are taught law school case briefing technique utilizing the Tort case Farwell v. Keaton.
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