The Law School Difference Between Memos, Briefings, & Briefs

First, a quick disclaimer: This is a suggested guide for a law school memo.  In practice, legal memo format vary from firm to firm.

Before drafting a memo, do a quick outline denoting key issue(s) and relevant cases (with cites) that support or weakens the case. Keep in mind that a memo is supposed to take on a neutral tone (as opposed to the advocacy tone attached to a legal brief).

Once you identify the relevant cases, group them together into following:

  • Group A: Cases supporting plaintiff’s assertion #1
  • Group B: Cases opposing plaintiff’s assertion #1 (and in effect supporting defendant’s contention)
  • Group C: Cases supporting plaintiff’s assertion #2 (the “Even if contention #1 fails” argument)
  • Group D: Cases opposing plaintiff’s assertion #2 (and in effect supporting defendant’s contention)

Once the cases are grouped, make a decision as to who the Court is likely to favor and explain why. Match the key facts to the prevailing rules of law.

Briefing v. Brief: What's the Difference?

Do not confuse briefing with a brief.  The former is a study method used in law school and the latter is a legal document presented to a court of law.

First year law students are encouraged to “brief” a case, that is, to identify the relevant facts, the legal issue, the rule of law (the holding), the analysis (how the court came to that particular conclusion) and conclusion (is the court siding with the lower court’s decision, reversing the lower court’s decision, or reversing in part and remanding/sending back the case to the lower court?)

The name “briefing” is a misnomer.  Often, a professor will spend 15-45 minutes on a case and calling various students to share his/her case briefing with the rest of the class.  Briefing is a skill you attain by reading many cases and learning to spot the legal issues and rules. This is particularly challenging because the ease of spotting a rule in a case (a holding) is closely associated with how well the judge writes.  Some judges write in a straight-forward manner and organize the opinion in a logical format.  Other judges like to meander a bit and inject the opinion with his/her opinion about the policy behind the law.

It may be easier to separate the brief into two aspects: procedural (which court is issuing the opinion, what the lower courts held, and what will happen to the case after the decision made by the issuing court) and the substantive aspect (is the court issuing the opinion changing/making law, upholding precedent, or distinguishing current case from precedent?)

As a first year law student, your goal is to try to figure out the general pattern of an opinion and zero in key words associated with the holding/rules of law.  As to whether or not to highlight the brief in different colors, it depends on whether you are a visual learner or not.  If coloring does nothing to help you differentiate the sections, then the act of slathering highlighters over printed words merely distract you from focusing on the meaning of the words.  From my own experience, I find it easier to simply use a color-coded bracket (or straight line) drawn on the side of the paragraph (to denote which section is the issue, relevant facts, key rules from precedent cases, the holding of the court issuing the opinion, and the procedural posture as well as the final decision.  I would circle key words for emphasis when necessary.

[thanks to aj82 and shelley via cc]

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