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You Made Your Case – The Are of Persuading Judges | Architecture and Strategy

Architecture and Strategy

Know how to use and arrange the parts of a brief.

Be sure to include all parts of the brief required for the court in which your brief will be filed. For this purpose, you may need to consult both generally applicable provisions (e.g., Federal Rule of Appellate Procedure 28) and the rules of the particular court (see S 30). Since some sections of a brief are highly desirable even when not required, you may have to find out (ordinarily from the clerk of court) what additions to the requirements are permitted.

There  is considerable variety in briefing requirements, even among courts at the same level. Two intermediate appellate courts, for example, may have quite different local rules. The difference is particularly marked, however, between appellate courts and trial courts in general. The required parts of briefs in the latter are typically many fewer. (So the Federal Rules of Civil Procedure, unlike the Federal Rules of Appellate Procedure, contain no briefing requirements.) This is understandable, since briefs at the trial level include not just posttrial briefs, which may approximate appellate briefs, but also many briefs on various filings, such as a motion for summary judgment, a motion to exclude evidence, etc.

In the discussion below, we have marked with daggers those sections that should be included in all trial-court briefs. We have marked with asterisks those sections that should ideally be included in all appellate briefs and in trial-court briefs that perform a similar fuction.

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