As litigators, you write many briefs for many different judges; however, before you can persuade the judge with your scintillating arguments, your brief needs to be user-friendly. While following the suggestions below will not guarantee your brief will win the day, they will ensure your briefs are more effective and more easily understood by the judge.
Easy to Verify Citations
Most judges practice what Ronald Regan preached: trust, but verify. They do not simply take what you say as true, even when supported by a citation. It may seem basic, but some attorneys forget that references to supporting authority and the factual record must be clear and accurate. Include pinpoint cites when citing to case law. Cite to the proper exhibit and page numbers when citing to the record. Worry less about your citation format being “Bluebook-correct” and focus instead on ensuring your citations are consistent, accurate, and easily understood.
You should also properly label any supporting evidence in a manner that makes it easy to reference. In federal court, all filings, including supporting evidence, are submitted through the court’s electronic filing system. When you upload a document, the system assigns that document a number, which appears at the top of the document and corresponds to the online docket. For example, the complaint is generally the first document filed and so usually is document number one on the docket.
When citing to the record, always refer to the document number you are relying upon in addition to your normal citation. For example, if you are referring to a specific paragraph in your complaint, your citation might look like this: (Compl. ¶ 10 [Doc. No. 1 at ¶ 10]). This citation tells the judge exactly where to find your supporting evidence on the docket. This becomes increasingly important the greater the number of documents on the docket or attached to your brief.
If possible, avoid attaching all your exhibits to your pleading as one large combined document. Rather, upload each document separately so each appears as an individual exhibit. For example, assume your summary judgment motion will be assigned document number 20 on the docket (meaning the last filing on the docket before your soon-to-be-filed motion was number 19) and you have exhibits 1–5 as support for your motion. Each exhibit is uploaded as a separate document under the same document number but is given a unique “dash” number, such as 20-1, 20-2, etc. In your motion, you should then refer to specific pages in the exhibits by citing to the exhibit document number and page number, such as: (Doc. No. 20-1 at 3). If you must upload all exhibits as one document, make sure to reference the exact page number you are relying upon. If Exhibits 1–5 total 400 pages, simply citing to Exhibit 3 almost guarantees the judge will have difficulty locating your supporting evidence. If necessary, include a concise footnote early in the brief to explain your citations to the record. Again, the overriding concern is clarity and ease of use.
Stipulate to Facts
An extraordinary amount of time and pages are wasted by non-moving parties regurgitating undisputed facts already recited by the moving party. While not all cases lend themselves to undisputed facts, more often than not there are facts upon which both parties agree. This may be as simple as, say, in an employment discrimination case, where and when the plaintiff was employed. In contract cases, often the only question is one of law. By submitting a list of undisputed facts, the judge can quickly focus on your legal argument rather than wasting time on trying to identify any disputed facts when there may be none.
Identify All Contested Facts
The corollary to stipulating to undisputed facts is making it clear to the judge which facts are in dispute. When possible, point out only those facts to which you believe there exists a genuine issue of material fact. You can either place all contested facts in a bulleted list or in the more traditional narrative form, but whatever you do, include supporting record citations.
Include a Table of Contents
Many local federal rules and some state rules require a table of contents if your brief exceeds a certain number of pages. However, the table of contents is useful for briefs of any length. Judges frequently return to your brief after an initial reading, and a table of contents allows them to quickly find portions of your argument they want to review. To be most effective, use subheadings in each section of your brief to denote logical breaks in the facts and argument sections and include those subheadings in your table of contents.