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Brief (law)
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A brief (Latin "brevis", short) is a written legal document used in various legal adversary systems that is presented to a court arguing why the party to the case should prevail.
In England and Wales, the phrase refers to the papers given to a barrister when they are instructed.
Trial briefs are presented at trial to resolve a disputed point of evidence.Legal briefs are used as part of arguing a pre-trial motion in a case or proceeding.
Merit briefs (or briefs on the merits) refers to briefs on the inherent rights and wrongs of a case, absent any emotional or technical biases
Amicus briefs refer to briefs filed by persons not directly party to the case.
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Encyclopedia
A brief (Latin "brevis", short) is a written legal document used in various legal adversary systems that is presented to a court arguing why the party to the case should prevail.
In England and Wales, the phrase refers to the papers given to a barrister when they are instructed.
Language
- Trial briefs are presented at trial to resolve a disputed point of evidence.
- Legal briefs are used as part of arguing a pre-trial motion in a case or proceeding.
Merit briefs (or briefs on the merits) refers to briefs on the inherent rights and wrongs of a case, absent any emotional or technical biases
Amicus briefs refer to briefs filed by persons not directly party to the case. These are often groups that have a direct interest in the outcome.
- Appellate briefs refer to briefs that occur at the appeal stage.
- Memorandum of law may be another word for brief, although that term may also used to describe an internal document in a law firm in which an attorney attempts to analyze a client's legal position without arguing for a specific interpretation of the law.
Function
The legal brief, or memorandum, establishes the legal position of the party, explaining why the court should decide in favor of that party, or, in the case of appeal, reverse the lower court's judgment. The trial or motion brief argues that the court should alter the course of a trial by resolving and fixing disputed points (failure to adhere to such a motion being estoppel).
To achieve these ends, the brief must appeal to the accepted forces such as statutory law or precedent, but may also include policy arguments and social statistics when appropriate. For example if the law is vague or broad enough to allow the appellate judge some discretion in his decision making, an exploration of the consequences of the possible decision outside of legal formalism may provide guidance. Such arguments may also support a legal argument when the purpose of the law at issue may be clear, but the particular application of that law in service of that purpose is in dispute.
Procedure
The party filing the appeal — called the petitioner or appellant, who is attempting to convince the appellate court to overturn the lower court decision — is responsible for submitting his brief first. The responding party — the respondent or appellee, who is satisfied with the lower decision — then files a reply brief within a specified time. Depending on the local rules of procedure, the court may allow or even require the parties to then file additional replies to the opposing party's briefs, multiplying the back-and-forth responses of the parties. Depending on local rules, the court may then decide the case purely based on the submitted briefs or may hear oral argument by the parties.
England
Upon a barrister devolves the duty of taking charge of a case when it comes into court, but all the preliminary work, such as the drawing up of the case, serving papers, marshalling evidence, &c., is performed by a solicitor. The delivery of a brief to counsel gives him authority to act for his client in all matters which the litigation involves.
The brief was probably so called from its first being only a copy of the original writ.
Contents
A brief contains a concise summary for the information of counsel of the case which the barister has to plead, with all material facts in chronological order, and frequently such observations thereon as the solicitor may think fit to make, the names of witnesses, with the "proofs," that is, the nature of the evidence which each witness is ready to give, if called upon. The brief may also contain suggestions for the use of counsel when cross-examining witnesses called by the other side. Accompanying the brief may be copies of the pleadings, and of all documents material to the case. The brief is always endorsed with the title of the court in which the action is to be tried, with the title of the action, and the names of the counsel and of the solicitor who delivers the brief. Counsel's fee is also marked. The result of the action is noted on the brief by counsel, or if the action is compromised, the terms of the compromise are endorsed on each brief and signed by the leading counsel on the opposite side.
Brief bag
The brief-bag, in which counsel's papers are carried to and from court, now forms an integral part of a barrister's outfit, but in the early part of the 19th century the possession of a brief-bag was strictly confined to those who had received one from a king's counsel. King's counsel were then few in number, were considered officers of the court, and had a salary of £40 a year, with a supply of paper, pens and purple bags. These bags they distributed among rising juniors of their acquaintance, whose bundles of briefs were getting inconveniently large to be carried in their hands. These perquisites were abolished in 1830. English brief-bags are now either blue or red. Blue bags are those with which barristers provide themselves when first called, and it is a breach of etiquette to let this bag be visible in court. The only brief-bag allowed to be placed on the desks is the red bag, which by English legal etiquette is given by a leading counsel to a junior who has been useful to him in some important case.
English ecclesiastical law
In English ecclesiastical law a brief meant letters patent issued out of chancery to churchwardens or other officers for the collection of money for church purposes. Such briefs were regulated by a statute of 1704, but are now obsolete, though they are still to be found named in one of the rubrics in the Communion service of the Book of Common Prayer.
United States
In the United States the word has a different meaning than it does in England on account of the fact that American attorneys exercises all the functions distributed in England between barristers and solicitors. A lawyer sometimes prepares for his own use what is called a "trial brief" for use at the trial. This corresponds in all essential particulars with the "brief" prepared by the solicitor in England for the use of counsel. But the more distinctive use of the term in America is in the case of the brief "in error or appeal," before an appellate court. This is a written or printed document, varying according to circumstances, but embodying the argument on the question affected. Most of the appellate courts require the filing of printed briefs for the use of the court and opposing counsel at a time designated for each side before hearing. In the rules of the United States Supreme Court and circuit courts of appeals the brief is required to contain a concise statement of the case, a specification of errors relied on, including the substance of evidence, the admission or rejection of which is to be reviewed, or any extract from a charge excepted to, and an argument exhibiting clearly the points of law or fact to be discussed. This form of brief, it may be added, is also adopted for use at the trial in certain states of the Union which require printed briefs to be delivered to the court.
Contents
In American courts, the brief typically has the following parts: a table of contents; a table of authorities listing the cases, statutes, and regulations that are cited; a presentation of the issues under review by the court, usually in only one sentence if possible; a statement of the case that presents the relevant facts and the previous history of the case in the lower courts; a summary of the legal standard of review that the appellate court should use in evaluating the decision of the lower court; a summary of the party's argument; and the full discussion of the legal and/or policy arguments explaining why the party believes it should win the case, which will be the most lengthy portion of the brief. The brief may also be accompanied by an appendix that includes copies of the lower court opinions and other documents or court opinions cited in the brief. The particular required format of briefs is a matter of local court procedural rules.
Scotland
In Scotland a brief is called a memorial.
Professional vs. student briefs
In North American law schools, students usually study historical cases by "briefing" them. Law school briefs are shorter than court briefs but follow a similar structure: presentation of issue, presentation of facts, presentation of legal and policy arguments and presentation of outcome. In the United States, the practice of briefing cases for study began at Harvard Law School in the fall of 1870 with the introduction of the case method of teaching by Professor Christopher Columbus Langdell. Case briefing is a widely accepted pedagogical method among law professors today.
See also
- Electronic Legal Brief
- Amicus curiae brief
- INSTANTER Filing Instanter
External links
- - Site visitors are taught law school case briefing technique utilizing the Tort case Farwell v. Keaton.
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