Legal writing is one of the most discussed topics in the practice of law, yet there are additional tools available for effective advocacy that the average attorney may be unaware. From newly admitted attorneys to veteran practitioners, all adhere to a relatively common formula in legal writing, and apply the tried-and-true methods of organization, exposition and legal application in drafting briefs. We assume there is a method to the madness, or more applicably, a rationale behind the uniformity in briefs to the court. When the opposite proves to be the case, and the rigidity is self-imposed, opportunities to advance your case and benefit your client may be lost.
Philadelphia Court of Common Pleas Briefing Requirement
With Philadelphia in the midst of an ongoing development boom, it is no wonder that so many complex commercial cases make their way into the First Judicial District of Pennsylvania’s commerce court program. Defending design professionals in these cases presents a unique set of benefits and challenges. While design professionals are almost always involved in any litigation over a project due to their involvement in design and construction administration, there are unique and specific legal defenses available to design professionals which can be pursued through the court to minimize your client’s exposure or even gain dismissal. In order to do that, one must be familiar with local briefing requirements.
Local Rules 208.2(c) and 210 require briefs to be formatted as follows:
1. Matter before the Court: State the particular pleading (motion, petition, objection, exception, application, etc.) before the court for disposition, and the particular relief requested therein.
2. Statement of question(s) involved: State the issue(s) in question form containing factual context sufficient to present the precise matter to be decided by the Court, each susceptible of a yes or no answer, each followed by the answer desired or advocated.
3. Facts: State the operative facts.
4. Argument: State the reason(s) why the court should answer the questions involved as proposed, including citation of the authorities relied on. An authority shall not be cited for general reference but in all cases shall be immediately preceded or followed by its relevant holding or particular proposition for which it stands.
5. Relief: State the specific action(s) requested of the court.
Rule 210 is simply stating that basic ingredients for any brief. It is up to the author how to state the facts, present the law, and advocate your clients’ position.
Advocacy Beyond Formulaic Recitation
Writing briefs on behalf of design professionals in complex commercial cases presents many challenges to attorneys. Transcribing long complicated factual narratives can often take a dozen or more pages, allowing ample opportunity for the reader to get lost; or worse, to skip ahead. There is further difficulty presenting the legal argument in a concise and persuasive way, and not allowing the reader to get lost in the citations and glaze over the text.
Effective advocacy under these circumstances requires the drafting attorney to make important decisions on what material is included/excluded, how it is presented and the arguments relied upon to make your clients’ case. Do not waste an opportunity to submit a unique and well-crafted brief. Even if your sought relief is denied, you will benefit by the Court recognizing your singular work product and project the message that the attorney and law firm are invested in the case and client.
Tips for Brief Drafting
Without any meaningful restrictions on the format and content required in your briefs, consider the following tips and strategies I find helpful:
- Use a Preliminary Statement to put any critical facts or circumstances up front where the Court will not miss them;
- Pick a focal point, if there are too many concurrent issues, split into separate motions/briefs;
- Draw contrasts when possible- the audience is more likely to pay attention to a helpful fact when it has a basis for comparison;
- Tie the facts of your case to common narrative themes which sum up an entire story (ex: the Titanic, Boy who cried wolf);
- Show – don’t tell, avoid characterizing your adversary with descriptive terms;
- Don’t be afraid to ask for a second opinion;
- Even the artistic masters must step away from their canvas; put down your completed brief for three days and read with fresh eyes;
- Research your Judge: take advantage of Google™ ;
- Keep a pad handy to write down ideas that come to you about your brief throughout the day;
- Anything that helps you is a good thing- keep an open mind
Submitting a brief to the court should not be a formulaic event. The court is a captive audience that will read and consider your brief, and this is an invaluable opportunity to showcase your knowledge, expertise, research and investment in the case and your client.
Qualified and experienced attorneys at Hoagland Longo are available to assist you. Contact us today at 732-545-4717.