Appellate brief organization (argument section)

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engineer
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Appellate brief organization (argument section)

Postby engineer » Tue Mar 30, 2010 12:11 am

When you guys are writing briefs and whatnot, if you had a four- or five-element test to apply to your case (for which each element must be satisfied in order to reach a certain legal conclusion), what's the best way to organize it? This is kind of how I'm approaching the task, but I just want to know if there's perhaps a better way to do this:

I. This court should affirm/reverse because the appellant/appellee failed to present evidence establishing the four elements of something.

This is a short road-map paragraph that explains what the five elements are, and briefly mentions cases in this jurisdiction and others that support its holding (or present holdings substantially similar). This paragraph will preview what's to come in the next sections.

A. The appellant/appellee cannot assert element 1, because evidence of a requirement of that element was not presented.

The next few paragraphs present a CRExAC/CREAC/IRAC/etc. argument supporting (A).

...

D. The appellant/appellee cannot assert element 4, because evidence of a requirement of that element was not presented.

The next few paragraphs present a CRExAC/CREAC/IRAC/etc. argument supporting (D).


Everyone says that you cannot have a I. without a II., but when there's only one dispositive issue in the case, I have heard that you may organize it in this format.

Anyway, my question is whether organizing a brief in this manner would be clear to the reader and provide the best framework to argue a case with multiple elements. More importantly, in a case where a particular court action requires that all elements be established, if you're arguing for the party needing to establish all of the elements, it would probably be absurd to do a CREAC analysis on elements that really aren't contentious. Instead, would a one- or two-paragraph explanation on how the element isn't contentious be a decent alternative?

When arguing for the adversary, that is, the party that only needs to show the non-existence of one element to cause the court to rule in their favor, are you able to merely concede the non-contentious elements in the road-map paragraph?

Thanks for any input!

truevines
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Re: Appellate brief organization (argument section)

Postby truevines » Tue Mar 30, 2010 11:44 am

Not sure if you can ask for comments on your work without violating your local rules.

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patrickd139
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Re: Appellate brief organization (argument section)

Postby patrickd139 » Tue Mar 30, 2010 11:46 am

truevines wrote:Not sure if you can ask for comments on your work without violating your local rules.

This.

Anonymous Loser
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Re: Appellate brief organization (argument section)

Postby Anonymous Loser » Tue Mar 30, 2010 12:21 pm

betasteve wrote:
truevines wrote:Not sure if you can ask for comments on your work without violating your local rules.

Contra: What good does pointing this out do, not knowing his local rules?


Pointing this out perpetuates the the TLS norm of reflexively reposting information gleaned from previous threads on the same subject, thereby insuring that the conventional wisdom of TLS continues to devolve into nothing more than an uniformed 0L echo chamber.

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ggocat
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Re: Appellate brief organization (argument section)

Postby ggocat » Tue Mar 30, 2010 12:36 pm

First, this is a question for your professor (assuming this is for school). Key to doing well in legal writing = do exactly what your prof says. Outside advice is worthless if your prof doesn't agree.

Second, I'll give you my two cents. But stop reading this thread if getting advice from someone else would violate your honor code.



You actually don't have one argument. You have four. You win if you can show that the other side failed to prove any one element of the conjunctive test. Do you see how? Does that help you structure your argument better?

I would probably just have an argument section like this:


Argument

[[[explain test, etc. roadmap]]]

I. other side can't prove element 1
II. other side can't prove element 2
III. etc.


Each roman numeral section is a separate reason why you should win.
Last edited by ggocat on Tue Mar 30, 2010 12:43 pm, edited 1 time in total.

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ggocat
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Re: Appellate brief organization (argument section)

Postby ggocat » Tue Mar 30, 2010 12:42 pm

engineer wrote:More importantly, in a case where a particular court action requires that all elements be established, if you're arguing for the party needing to establish all of the elements, it would probably be absurd to do a CREAC analysis on elements that really aren't contentious. Instead, would a one- or two-paragraph explanation on how the element isn't contentious be a decent alternative?

This depends on the situation. You can write less if you're doing the responsive brief. But I would write at least a paragraph if the appellant/movant. If an appellant, it's a lot easier because you have the trial court's ruling.

engineer wrote:When arguing for the adversary, that is, the party that only needs to show the non-existence of one element to cause the court to rule in their favor, are you able to merely concede the non-contentious elements in the road-map paragraph?

Yes.

engineer
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Re: Appellate brief organization (argument section)

Postby engineer » Tue Mar 30, 2010 2:12 pm

I apologize if my post seemed a little unclear due to how generic I made the situation. For what it's worth, getting advice in this manner from people is completely fine and not an honor code violation, but going any deeper (or posting my actual outline) would be.

With that said, it wold probably make a little more sense to split everything up into three or four arguments, introducing the general three- or four- element test in the introduction. I will try to get clarification on this from my prof, too.

Thank!

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AlasLavinia
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Re: Appellate brief organization (argument section)

Postby AlasLavinia » Thu Apr 01, 2010 9:30 pm

First of all, it is very unlikely that this is an honor code violation. Your question is about generic logical structure of a legal argument.

Secondly, I don't think I even have enough information to answer it. I think it depends on whether the four elements are disjunctive or conjunctive (AND or OR).

Then, it depends on which side of the argument you are writing. If the elements are conjunctive and you are arguing that the other side failed to establish one of the elements, it would be sufficient to argue only that one element (after a short description of the other elements). However, if the elements are disjunctive or you are arguing that the test is fulfilled, it would be necessary to "run the gauntlet" with all four elements.

I hope this made sense.

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mikeytwoshoes
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Re: Appellate brief organization (argument section)

Postby mikeytwoshoes » Sat Apr 03, 2010 8:27 pm

Edit: what ^ said.




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