Brief (law)
Encyclopedia
A brief is a written legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

 document used in various legal adversarial system
Adversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...

s that is presented to a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 arguing why the party to the case should prevail.

In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...

, the phrase refers to the papers given to a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...

 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
Merit (legal)
Merits is a legal concept referring to the inherent rights and wrongs of a legal case, absent of any emotional or technical biases. The evidence is solely applied to cases decided on the merits, and any procedural matters are discounted.-External links:*...

(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 be used to describe an internal document in a law firm
Law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients about their legal rights and responsibilities, and to represent clients in civil or criminal cases, business transactions, and other...

 in which an attorney attempts to analyze a client's legal position without arguing for a specific interpretation of the law.
IRAC
IRAC
IRAC is an acronym that generally stands for: Issue, Relevant law, Application to facts, and Conclusion. It functions as a methodology for legal analysis. The IRAC format is mostly used in hypothetical questions in law school and bar exams.-Issue:The IRAC starts with a statement of the Issue or...

 Case Briefs
Are usually a one page review done by a paralegal or attorney, ultimately used by the attorney to find previously decided cases by an Appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...

, in State or Federal Jurisdiction, which show how the courts have ruled on earlier similar cases in court.

Function

The brief or memorandum establishes the legal argument for the party, explaining why the reviewing court should affirm or reverse the lower court's judgment based on legal precedent and citations to the controlling cases or statutory law.
To achieve these ends, the brief must appeal to the accepted forces such as statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...

 or precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...

, 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
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....

 — 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
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...

 by the parties.

England

Upon a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...

 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, etc., is performed by a solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...

. 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 barrister 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 pleading
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...

s, 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 differs in meaning from its English counterpart because American attorneys exercise 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 courts, the brief typically has the following parts: a table of contents; a table of authorities listing the cases, statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

s, and regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...

s 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.

Elsewhere

In Scotland a brief is called a memorial and in Canada it is called a factum. In Australia the tradition regarding briefs is almost identical to England, except that the use of brief bags is relatively uncommon.
In Dutch
Dutch language
Dutch is a West Germanic language and the native language of the majority of the population of the Netherlands, Belgium, and Suriname, the three member states of the Dutch Language Union. Most speakers live in the European Union, where it is a first language for about 23 million and a second...

 and German
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....

, the word brief refers to a regular letter.

Professional vs. student briefs

In North American law school
Law school
A law school is an institution specializing in legal education.- Law degrees :- Canada :...

s, 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
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

 in the fall of 1870 with the introduction of the case method of teaching by Professor Christopher Columbus Langdell
Christopher Columbus Langdell
Christopher Columbus Langdell , American jurist, was born in the town of New Boston, New Hampshire, of English and Scots-Irish ancestry....

. Case briefing is a widely accepted pedagogical method among law professors today.

IRAC Case Briefing

IRAC is an Abbreviation
Abbreviation
An abbreviation is a shortened form of a word or phrase. Usually, but not always, it consists of a letter or group of letters taken from the word or phrase...

 of Issue, Rule, Analysis (or some say Application), Conclusion.
When a potential client has an interview with an attorney and tells of the legal problem, the attorney, or office paralegal, will review prior case law to find out if the client does indeed have a problem that has legal remedy.

See also

  • Electronic Legal Brief
  • Amicus curiae
    Amicus curiae
    An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...

     brief
  • INSTANTER Filing Instanter
The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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