Difference between memos and briefs

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rinkrat19
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Difference between memos and briefs

Postby rinkrat19 » Sun Feb 10, 2013 7:53 pm

What am I missing? Where does the persuasion go in a brief? Obviously I know that a brief is "persuasive," and it's got structural differences like the caption and thesis paragraph. And I get that you can emphasize/deemphasize things in the statement of facts to make your client look good.

But my CLR prof has given us basically zero instruction on how to make the TREAC section persuasive. I mean, if you want me to write persuasively, I can do that, but not with a stingy-ass word limit and within the same rigid TREAC structure as a memo.

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gaud
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Re: Difference between memos and briefs

Postby gaud » Sun Feb 10, 2013 7:54 pm

Also interested to hear what people have to say

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ph14
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Re: Difference between memos and briefs

Postby ph14 » Sun Feb 10, 2013 8:11 pm

It's your analysis section, the facts you choose to emphasize and minimize, the legal arguments you make, and also the way you frame the issues. A memo should be objective. In that situation you're trying to predict how a court would come out on an issue. But a brief should be persuasive, that is, you should be trying to make the strongest legal arguments you can make in favor of your client.

One example of a million different things you could do:
Memo: Case might not control the outcome here, because it could be read either narrowly or broadly.
Brief: Case controls the outcome here, because it must be read narrowly, because of reasons.

jml8756
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Re: Difference between memos and briefs

Postby jml8756 » Sun Feb 10, 2013 8:16 pm

So let's say you have 10 cases that are on point: 5 are good for you and 5 are bad from you. From the 5 good cases you take their specific facts and then generalize a rule that can be favorably applied to your own facts. A good rule should also inoculate against counter-arguments.

Then you apply your rule to your case, analogizing your facts to the facts of the favorable cases.

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gaud
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Re: Difference between memos and briefs

Postby gaud » Sun Feb 10, 2013 8:18 pm

You guys are awesome

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rinkrat19
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Re: Difference between memos and briefs

Postby rinkrat19 » Sun Feb 10, 2013 8:21 pm

Thanks, guys. I can see a difference there.

Not sure how to implement it with about 800 words for a TREAC, but hey.

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kalvano
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Re: Difference between memos and briefs

Postby kalvano » Sun Feb 10, 2013 10:27 pm

The other thing I would say is that everything in a brief is designed to sway the reader.

So in a memo, for the facts section: "John Doe was terminated from XYZ, Inc. on Friday for x reason. XYZ alleges that Doe misappropriated trade secrets when he left the company."

In a brief, if you're arguing for the company: "On Friday, Doe was terminated for cause by XYZ. When he departed, he stole confidential and proprietary trade secret information that is rightfully the property of XYZ."

That's a pretty bad example, but everything you do in a brief ahold be aimed at persuading the reader. Facts, section headings (Misappropriation of Trade Secrets versus Doe Stole Confidential Information), language choice, everything. You can't omit facts or bad cases, but the way you present everything can minimize bad facts and bad case law.

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gaud
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Re: Difference between memos and briefs

Postby gaud » Sun Feb 10, 2013 10:29 pm

Gotcha. Thanks bro.




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