Checklist for Drafting a Trial Brief - CUNY School of Law (2023)

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?