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Telling the brief tale

Most lawyers have neither the time nor the resources to produce extensively researched and intricately crafted legal briefs. The process is often viewed as a time-eating money loser, and so assigned to young, inexperienced associates. Briefs, however, and the research that goes into them, are critical to successful litigation.

I know. For over 28 years, my work days, nights and weekends have been spent writing briefs. The legal issues presented are always diverse — contract, unfair competition, torts, family disputes — but the basic techniques remain the same. A good brief can save a case. A bad brief can lose one.

The goal of this and future columns is to provide tools to make brief writing as easy, efficient and successful as possible. The best and simplest tool is to remember the brief’s fundamental purpose — to focus the facts on your client’s scenario, not on your opponent’s. Yes, a brief must advance the client’s legal position and counter the opponent’s legal arguments. Even a strong legal argument, however, may not grab the court’s attention, unless the court is focused on your client and your client’s story.

I once defended an employer in a sex discrimination case. The employee claimed that she had performed similar duties to those of a higher paid male co-worker, and that the employer’s failure to provide her adequate compensation and other benefits resulted in a constructive discharge.

My client moved for summary judgment. The employee’s summary judgment brief described a laundry list of acts which the employee claimed that she had done, which were similar to those tasks of the higher paid male employee. The employee, in fact, portrayed herself as the company’s thwarted savior.

The employer, of course, denied that the employee did everything she said she did, and considered her performance to be less than stellar. The employer’s main concern, however, was that the employee was trying to elevate her employment position to one on a par with the higher paid male employee.

I knew that my reply brief had to negate, one by one, the tasks which the employee claimed she had performed. I also knew that I had to show that those actions which the employee did take were deficient. But I had to do this without ceding to the employee’s skewing of the issues. I had to regain the offensive, and I had only a few pages to do so.

What did I do? I went back to the basics. I pulled the employer’s original job posting for the employee’s position. I placed it, exactly as it appeared when published in the newspaper’s classified ad section (these were the days before Internet job postings), prominently in the brief.

That posting confirmed that the position for which the employee was hired was subordinate to, and had lesser duties than, the other worker’s superior (and so higher paid) position. The posting shifted the focus away from the employee’s assertions and back to where it belonged — the employer, the specific employment position, and the employee’s substandard performance of that position. The legal argument, that the employee had not been subjected to unlawful employment discrimination, fell right into place.

I am convinced that the brief’s refocusing of the issues helped the parties reach a successful settlement. I refer to it to this day, as I stare at another blank computer screen, wondering how to attack another motion. It reminds me that you can’t win if you let your opponent frame the story.

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm's business and individual clients. Diane can be reached at 414 273 3939 or [email protected].

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