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By: Cynthia Dunaj (Guest Blogger)
Hello, TPS readers! Are you the master of your legal universe? If so, that’s terrific! Second question: Do you draft legal briefs? If not, then perhaps it’s something you should strongly consider. We’ve asked experienced paralegal, Cynthia Dunaj, to share some legal drafting tips with us today.
So, the next time you find yourself with a major writing project looming overhead (or you simply decide that you’d simply like to kick your paralegal skills up a notch and aspire into paralegal MVP status), we hope you’ll remember these helpful tips! You can take it from here, Cynthia…
Every lawyer can write a stellar brief on the drop of a hat. Lawyers always know exactly what the issues are, where to find the most compelling facts in the case file and the best case law. Wrong. Well, even if that is true, they sure would appreciate help from a competent paralegal!
Whether you have been assigned the task of tackling a response to a dispositive motion, an appellate or other substantive brief, need to help your attorney to do the same, or just want to have a game plan ready should you need it, hopefully the tips in this article will help you to develop your own system.
Prepare and Gather Relevant Information
To begin, it may seem obvious, but even if you’re in a hurry, you should read or reread the dispositive motion you are responding to or the order you are appealing from and compile all the relevant pleadings, records, facts, and case law. If this is not a case to which you have been previously assigned, make sure you familiarize yourself with, and clearly understand, the case history that lead up to this point in the litigation. It is imperative to have a thorough understanding of facts alleged, legal theories and case law. If you don’t, educate yourself before going any further.
Outline the Issues
Next, outline or highlight the argument(s) at issue. Take the time to reorganize the case file or check the court docket to make sure you haven’t missed an important order or other document. Create a timeline if necessary. You will have a new appreciation for a well organized file, in whatever medium it is kept. At first glance, most motions to dismiss, for example, are intimidating and well crafted. However, on further investigation, the author may be relying on artful drafting. Carefully compare what is stated or argued with the facts of your case. Are there any discrepancies? Look for omissions of fact or exaggerations. There may be very little that is actually similar. If so, point out what is distinguishable. Remember, it is your attorney’s job to educate the court about his or her client’s case. Is there any new evidence or testimony to support your case? Note that you are limited to the record on appeal in an appellate brief.
Devise an Action Plan and a Format
Once you clearly understand what the issues are and what needs to be briefed, you will want to formulate a game plan. Think about what it will take to communicate your client’s position or present the issue(s), be it defeating a motion to dismiss, a motion for summary judgment or an appellate brief.
I have found it extremely helpful to maintain a file of good examples of effective styles and formats of briefs from various sources to use as a model, and well written arguments of course, to both learn from and save me time. As a result, I began to look at such mundane tasks as sorting the daily mail (U.S.P.S. and electronic) in a new light. When I came across a good brief, even by the other side, I’d make a copy for my example file. Your office may already have a certain style and format it likes to use, but the task may require varying from the norm. Always check the court rules for required formats, page lengths, font size, color of covers, binding, etc. Local trial court rules may require that paragraphs be numbered.
Break It Up Into Components
Breaking a writing task up into components makes it much easier. That way you can refer back to your outline to use as a check list to make sure you haven’t missed something. Some common sections or headings are introduction, standard of review, statement of facts, argument, and conclusion, which can include a wherefore clause. An appellate brief may include headings such as jurisdiction, issues presented for review, nature of the case and certificate of compliance. If you start your brief with the caption, add some common headings and fill in the statement of facts and a basic conclusion and wherefore, even something as simple as “for the foregoing reasons this Court should deny (Defendant’s name) motion to dismiss”, you will quickly feel like you are making progress and feel less intimidated. You will probably end up changing most of what you started with, that’s okay. The simplest, most straight forward approach is usually best.
Substance-Think Outside the (Case Law) Box
Don’t just think in terms of case law. Consider how on point a case is. The most useful authority not only addresses your issue, but it is also close to your factual situation. Present a clear picture relating the facts, evidence, and case law. For example, one approach to a case that has been going on for a number of years and/or has been voluntarily dismissed and refiled could be to draft a response to a motion to dismiss in numbered paragraph style as though you were drafting a routine motion beginning with dates and very brief summary of the most important events in the case leading up to the litigation thus far. Then bring in the defendant’s arguments and your responses with case law, any new evidence, testimony or excerpts of court transcripts in support. Wrap it up into a hard hitting draft that nails it. As paralegals, we can do this work as long as we are properly trained and supervised.
Your attorney will be thrilled! Not only with the fact that you can you prepare a brief for filing, but he or she will take notice that you really understand the cases to which you are assigned. He or she will feel like you took a huge load off his or her back – because you have! You will indeed feel like you an integral part of the legal team. Heck, you may even be recognized as the MVP on the legal drafting committee. So, the next time you find yourself in the midst of a major writing project (or you simply feel inclined to embrace a new career adventure), just remember these tips, break it down, and you’ll find that drafting a major brief isn’t really much different from any other assignment you’ve handled successfully.
Cynthia Dunaj has over five years experience as a civil litigation paralegal in Chicago, Illinois. Ms. Dunaj serves on the Board of Directors and as Treasurer of the Illinois Paralegal Association. She holds a Bachelor of Fine Arts degree and an ABA-approved Paralegal Certificate with honors.
We hope you’ll consider this article a formal invitation to give legal briefing a try, TPS readers! The art of legal briefing may be a bit daunting, even for the experienced paralegals among us, but if you learn to master the art of legal drafting, you might just earn yourself that coveted MVP (Most Valuable Paralegal) trophey!
Do you have any additional tips for legal briefing? Perhaps you’d like to share your first “big” experience with a significant legal drafting project to help the rest of us be a wee bit less intimidated? If so, please leave a comment! We’d certainly love to hear from you.