The Trial Brief & Supporting Memorandum & CREAC Review Professor Mathis Rutledge

Pretrial Motions Motions – short & to the point Accompanied by memorandum in support Ex: Memorandum in Support of Motion for Summary Judgment or Memorandum in Opposition to Motion for Summary Judgment

Check the local Rules of Court first Structure Check the local Rules of Court first Caption Title Introduction Statement of Facts Argument & Authorities Conclusion Signature Block Certificate of service Affidavits & Evidence

Caption Court and division Each party’s name and designation in the case (Plaintiff & Defendant) Docket number (usually gives year, sequential number of the case; type of case; information about the division or judge)

Title Controlled by local rules Tells who is filing the document & type

Statement of Facts Remember your theory Highlight favorable facts Include all legally significant facts Don’t misrepresent by omission Don’t waste time with underlying facts Include background facts Places things in context Include emotionally appealing facts

Statement of Facts Tell what happened Tell the truth, but tell it persuasively Hold the court’s attention

Facts: Tell What Happened Be objective, straightforward & accurate Do not argue or discuss law

Facts Don’t omit harmful facts Supportable from the Record Not inferences Note page numbers and sources

Hold the Court’s Attention Interesting Easy-to-follow (organization) Omit needless info

Protect Your Credibility NEVER omit negative facts that are legally significant NEVER omit facts the other side will rely on

Citations Citations to court documents include parentheses The period of the citation sentence should be inside the parentheses Include pincites (line and page for deposition) Do not include “p” for page Dates only needed if there are multiple documents with the same title or the date is significant Short forms may include id. or see Rule B10.5

Citations Abbreviations for Court documents: Rule BT.1 (p. 25) (Jones Dep. 10:5-8.) (Mathis Aff. ¶ 2.) (Def.’s Mot. Dismiss 23.)

Drafting the Facts Tell the story that Organize the story Emphasizes theory De-emphasizes unfavorable facts Organize the story Clear & persuasive Edit the story Ensure accurate & supported by the record

Unfavorable Facts Place near a positive fact Bury in the middle Summarize Writing Strategies Passive voice

Tell a Compelling Story Provide context first Consider chronological order Start & end strong

Multiple Claims Draft a thesis paragraph for the facts – summarizing the bare bones of the case in 3-4 sentences Instead of a chronological background, describe each claim separately Style preference

Argument & Authorities Weave facts & law persuasively Select best & most persuasive Organize

Argument Start with threshold arguments Next – strongest

Organizational Goals Capture the reader’s attention Show client’s position is correct & strong Build credibility

Heart of the Brief Introduction Statement of Facts Argument & Authorities

Introduction Short, succinct paragraph (usually one) Goals: Identifies the client Describes the motion Identifies relief requested If filing a response Indicates opposition Relief sought

Introduction Compare to Overview Paragraph Introduce client State basis of lawsuit Summarize your argument – possibly in a separate section

Summary of the Argument Required by some courts (check local rules) Identify the legal basis for why the motion should be denied (or granted)

Organizing the Argument Let the issues be your guide C onclusion R ule E xplanation A pplication

CREAC (single claim) C Begin with conclusion or an overview paragraph Identify the elements (issues in dispute) State why summary judgment should be granted or denied

CREAC R Identify the legal standard – summary judgment, motion to dismiss, etc. For summary judgment – look at Celotex 477 U.S. 317 (1986) and Rule 56

Multiple Claims Treat each claim separately Example: suit for intentional infliction of emotional distress, constructive discharge and retaliation. Start with IIED

Multiple Claims First claim – overview paragraph for that claim Identify elements Don’t discuss all of the elements Focus on your strongest arguments

Point Headings Summarize your argument in a concise and persuasive point heading Ex: Smith suffered no severe emotional distress.

How to Craft Persuasive Point Headings Point headings should follow breakdown of the rule(s). Andrea will suffer irreparable harm. The balance of hardship favors Andrea. Andrea is likely to succeed on the merits The public interest favors granting Andrea the motion.

Organizing Under each point, begin with an intro that explains why you should win and state the conclusion you want the court to reach. (Can be +1 sentence) State and prove the rule Apply the rule Restate your conclusion

Thesis Paragraph first element/first claim Following the point heading – thesis paragraph on the issue Ex. IIED requires severe distress Identify the factors – the courts have found severe distress when . . . Explain why plaintiff fails to meet the standard (or meets)

Analysis Deductive writing pattern Explain the rule then Apply to the client’s facts

Persuasive Rule Explanation You can’t apply the law without knowing it Assume you’re it Use transitions and thesis sentences Focus on the favorable Identify the favorable rule the case stands for Highlight favorable facts and reasoning

Dealing with the Bad Stuff De-emphasize the unfavorable Bury unfavorable information in the middle of a paragraph or in a dependent clause Emphasize facts that are distinguishable

Dealing with Adverse Arguments Don’t make arguments for your opponent but anticipate the most obvious ones. Where to fit them in? Depends. If mirror image of your argument, then your argument suffices. If they are separate points, need to give it serious thought – maybe at the end. NOT: My opponent will argue X, but this is wrong because… INSTEAD: Opponent misconstrues the exception allowing employers to test employees as part of an ongoing investigation into economic losses.