Checklist for Drafting a Trial Brief

(Modeled after a brief writing checklist prepared by Professor Janet Calvo, CUNY School of Law)

I. Introduction (or Preliminary Statement)

  • Does the Introduction articulate the party's claim and introduce the theory of the case by referring to the case facts?
  • Are the parties identified?
  • Is the procedural history included?

II. Statement of Facts

  • Does the Statement set forth the facts in a narrative that will be easy to follow for a reader who is unfamiliar with the case?
  • Does it include all legally significant facts?
  • Does it include relevant background facts?
  • Does it include facts that have an emotional resonance or sympathetic value for the party on whose behalf you write?
  • Are the facts stated accurately?
  • Does the Statement include the facts that you use in the Argument?
  • Has the Statement been edited to remove legal conclusions and editorializing?
  • Do favorable facts appear in positions of emphasis?
  • Does the Statement include significant unfavorable facts without overemphasizing them?
  • Does the Statement present and develop the theory of the case?

III. Question Presented (or, alternatively, Summary of Argument)

  • Does the Question combine the legal claim and controlling legal standard with the legally significant facts that raise the legal issue?
  • Is the Question framed so as to suggest an affirmative answer?
  • Does the Summary (if applicable) present a short statement of the legal and factual theory of the case?

IV. Point Headings

  • Do the point headings and subheadings provide the reader with an outline of the argument?
  • Are the headings framed as legal assertions that are favorable to the party you represent, and are they supported with legally relevant facts?
  • Do the headings answer the question(s) presented?
    • V. Argument
    • A. Overall
  • Is the Argument organized into points and subpoints?
  • Do the points and subpoints follow the CRRACC paradigm (Conclusion/Rule Synthesis/Rule Proof/ Application of Rule to Facts/Counterargument/Conclusion Restated)?
  • Does the Argument address the procedural context and the arguments based upon it?

B. Content of Rule

  • Is the synthesized rule (legal standard) set forth clearly and completely?
  • Does the synthesized rule discuss the "common threads" (as that term is used in Laurel Oates et al., The Legal Writing Handbook (3d ed., Aspen), at pp. 78-82 ) or patterns among cases?
  • Is the synthesized rule framed favorably for the party you represent, supporting the conclusion that you want the court to reach?

C. Rule Proof

  • Does the Rule Proof carry forward and develop each of the ideas stated in the Rule Synthesis in a section of one or more paragraphs that begins with a thesis (idea) sentence?
  • Do the cases discussed in the Rule Proof illustrate and support the idea expressed in each thesis sentence?
  • Does the Rule Proof address the holdings, legally significant facts, and reasoning of the cases discussed?
  • Are the facts of the cases included in the Rule Proof related to/illustrative of the legal point that you have asserted?
  • Are the parts of cases that counter your argument distinguished or explained?
  • Does the Argument raise and address relevant policy arguments?

D. Application of Rule to Fact

  • Does the Application relate all the components of the rule/legal standard to the facts of the case that you are arguing?
  • Does the Argument demonstrate how underlying policy objectives in the law are met if the court accepts the application of law to fact?
  • Does the Application of rule to fact illustrate the theory of the case?

E. Counterargument

  • Does the Counterargument address and dispose of the arguments raised by the opponent, without overemphasizing them?

F. Organization

  • Does each paragraph within a point or subpoint advance the argument being made?
  • Are there clear transitions between paragraphs?
  • If the thesis or topic sentences of each paragraph within a point or subpoint were arranged in order, would a sound structure or outline of the point emerge?
  • Do the sentences within a paragraph relate to one another coherently, such that each successive sentence builds on the idea that is being addressed in preceding sentences?

G. Form

  • Have you checked all sentences for correct grammar, spelling, and citation form?