The overarching objective of a brief is to make the court’s job easier. Every other consideration is subordinate. What achieves that objective? Brevity. Simple, straightforward English. Clear identification of the issues. A reliable statement of the facts.
Informative section headings. Quick access to the controlling text. In the following sections, we recommend and discuss these and other means of helping the court. But whenever you are convinced that departing from any of our recommendations, or from any convention, will make the court’s job easier, depart.
Bear in mind that a good brief cannot be merely a cobbling together of separate sections and arguments but must form a coherent whole. Design the entire writing – from the statement of questions presented to the conclusion—to bring out your theory of the case and your principal themes. What two or three or four points are most important for the judge to take away?
Ensure that both the structure of the brief and the content of its individual parts are designed to make these points stand out. Your purpose is to bring the court to a certain destination; the brief should be designed and built to get there.
Many briefs, particularly at the trial level, deal with subordinate issues such as standing, admissibility of evidence, and qualification of experts. You should use even these briefs to ensure, unobtrusively, that the court grasps your theory of the case as a whole. Take every available occasion to shape how the judge views your case, placing the subject of the motion being briefed in the larger context of the lawsuit and fixing in the judge’s mind ideas that may help you later on.
Inputs Antonin Scalia and Bryan A Garner