A brief (Old French from Latin "''brevis''", short) is a written
legal
Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
document used in various legal
adversarial system
The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a judge or jury, who attempt to det ...
s that is presented to a
court
A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...
arguing why one party to a particular case should prevail.
In
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is ...
(and other
Commonwealth
A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with " republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from th ...
countries, e.g.,
Australia) the phrase refers to the papers given to a
barrister when they are instructed.
Language
:Pre-Trial briefs are exchanged between parties at a date set during the pre-trial conference to argue matters under consideration before trial.
[Federal Rules of Civil Procedure 16(C)(2)]
:Trial briefs are presented at trial to resolve a disputed point of evidence.
:Legal briefs are used as part of arguing a pre-trial motion in a case or proceeding.
::
Merit briefs (or briefs on the merits) refers to briefs on the inherent rights and wrongs of a case, absent any emotional or technical biases
::
Amicus briefs
An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on ...
refer to briefs filed by persons not directly party to the case. These are often groups that have a direct interest in the outcome.
: Appellate briefs refer to briefs that occur at the appeal stage.
:Memorandum of law may be another word for brief, although that term may also be used to describe an internal document in a
law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients (individuals or corporations) about their legal rights and responsibilities, and to ...
in which an attorney attempts to analyze a client's legal position without arguing for a specific interpretation of the law.
:
IRAC Case Briefs Are usually a one page review done by a paralegal or attorney, ultimately used by the attorney to find previously decided cases by an
Appellate court
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
, in State or Federal Jurisdiction, which show how the courts have ruled on earlier similar cases in court.
Function
The brief or memorandum establishes the legal argument for the party, explaining why the reviewing court should affirm or reverse the lower court's judgment based on legal precedent and citations to the controlling cases or statutory law.
To achieve these ends, the brief must appeal to the accepted forces such as
statutory law or
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
, but may also include policy arguments and social statistics when appropriate. For example, if the law is vague or broad enough to allow the appellate judge some discretion in his decision making, an exploration of the consequences of the possible decision outside of legal formalism may provide guidance. Such arguments may also support a legal argument when the purpose of the law at issue may be clear, but the particular application of that law in service of that purpose is in dispute.
Procedure
The party filing the
appeal – called the
petitioner or appellant, who is attempting to convince the appellate court to overturn the lower court decision – is responsible for submitting his brief first. The responding party – the respondent or appellee, who is satisfied with the lower decision – then files a reply brief within a specified time. Depending on the local rules of procedure, the court may allow or even require the parties to then file additional replies to the opposing party's briefs, multiplying the back-and-forth responses of the parties. Depending on local rules, the court may then decide the case purely based on the submitted briefs or may hear
oral argument by the parties.
England
Upon a barrister devolves the duty of taking charge of a case when it comes into court, but all the preliminary work, such as the drawing up of the case, serving papers, marshalling evidence, etc., is performed by a
solicitor. The delivery of a brief to counsel gives him authority to act for his client in all matters which the litigation involves.
The brief was probably so called from its first being only a copy of the original writ.
Contents
A brief contains a concise summary for the information of counsel of the case which the barrister has to plead, with all material facts in chronological order, and frequently such observations thereon as the solicitor may think fit to make, the names of witnesses, with the "proofs," that is, the nature of the evidence which each witness is ready to give, if called upon. The brief may also contain suggestions for the use of counsel when cross-examining witnesses called by the other side. Accompanying the brief may be copies of the
pleadings, and of all documents material to the case. The brief is always endorsed with the title of the court in which the action is to be tried, with the title of the action, and the names of the counsel and of the solicitor who delivers the brief. Counsel's fee is also marked. The result of the action is noted on the brief by counsel, or if the action is compromised, the terms of the compromise are endorsed on each brief and signed by the leading counsel on the opposite side.
Brief bag
The ''brief-bag'', in which counsel's papers are carried to and from court, now forms an integral part of a barrister's outfit, although today it is used primarily to carry counsel's robes. In the early part of the 19th century the possession of a brief-bag was strictly confined to those who had received one from a king's counsel (silk).
King's Counsel
In the United Kingdom and in some Commonwealth countries, a King's Counsel (post-nominal initials KC) during the reign of a king, or Queen's Counsel (post-nominal initials QC) during the reign of a queen, is a lawyer (usually a barrister or ...
were then few in number, were considered officers of the court, and had a salary of £40 a year, with a supply of paper, pens and purple bags. These bags they distributed among rising juniors of their acquaintance, whose bundles of briefs were getting inconveniently large to be carried in their hands. These perquisites were abolished in 1830.
Brief-bags are now either blue or red. Blue bags are those with which barristers provide themselves when first called, and, in some jurisdictions, it is a breach of etiquette to let this bag be visible in court. The only brief-bag allowed to be placed on the desks is the red bag, which by English legal etiquette is given by a leading counsel to a junior as a reward for excellence in some important case. This is still viewed as one of the great traditions of the bar. The red bag is embroidered with the junior barrister's initials and a handwritten note of thanks is usually placed inside the bag. In many jurisdictions, the receipt of a red bag from a silk is seen as a rite of passage for a junior barrister.
The use of such special bags eventually led to the
briefcase.
Ecclesiastical
In English
ecclesiastical law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
a brief meant
letters patent
Letters patent ( la, litterae patentes) ( always in the plural) are a type of legal instrument in the form of a published written order issued by a monarch, president or other head of state, generally granting an office, right, monopoly, t ...
issued out of
chancery
Chancery may refer to:
Offices and administration
* Chancery (diplomacy), the principal office that houses a diplomatic mission or an embassy
* Chancery (medieval office), responsible for the production of official documents
* Chancery (Scotlan ...
to
churchwardens or other officers for the collection of money for church purposes. Such briefs were regulated by a statute of 1704, but are now obsolete, though they are still to be found named in one of the rubrics in the Communion service of the
Book of Common Prayer
The ''Book of Common Prayer'' (BCP) is the name given to a number of related prayer books used in the Anglican Communion and by other Christianity, Christian churches historically related to Anglicanism. The original book, published in 1549 ...
.
United States
In the United States, the word differs in meaning from its English counterpart because
attorneys in the United States
An attorney at law (or attorney-at-law) in the United States is a practitioner in a court of law who is legally qualified to prosecute and defend actions in court on the retainer of clients. Alternative terms include counselor (or counsellor- ...
exercise all the functions distributed in England between barristers and solicitors. A lawyer sometimes prepares for his own use what is called a "trial brief" for use at the trial. This corresponds in all essential particulars with the "brief" prepared by the solicitor in England for the use of counsel.
But the more distinctive use of the term in America is in the case of the brief "in error or appeal," before an appellate court. This is a written or printed document, varying according to circumstances, but embodying the argument on the question affected. Most of the appellate courts require the filing of printed briefs for the use of the court and opposing counsel at a time designated for each side before hearing. In the rules of the United States Supreme Court and circuit courts of appeals the brief is required to contain a concise statement of the case, a specification of errors relied on, including the substance of evidence, the admission or rejection of which is to be reviewed, or any extract from a charge excepted to, and an argument exhibiting clearly the points of law or fact to be discussed. This form of brief, it may be added, is also adopted for use at the trial in certain states of the Union which require printed briefs to be delivered to the court.
Contents
In
American courts, the brief typically has the following parts: a table of contents; a
table of authorities listing the cases,
statutes, and
regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology
Biology is the scientific study of life. It is a natural science with a ...
s that are cited; a presentation of the issues under review by the court, usually in only one sentence if possible; a statement of the case that presents the relevant facts and the previous history of the case in the lower courts; a summary of the legal standard of review that the appellate court should use in evaluating the decision of the lower court; a summary of the party's argument; and the full discussion of the legal and/or policy arguments explaining why the party believes it should win the case, which will be the most lengthy portion of the brief. The brief may also be accompanied by an appendix that includes copies of the lower court opinions and other documents or court opinions cited in the brief. The particular required format of briefs is a matter of local court procedural rules.
Elsewhere
In Scotland a brief is called a memorial and in Canada it is called a factum. In Australia the tradition regarding briefs is almost identical to England, except that the use of brief bags is relatively uncommon.
In
Dutch and
German, the word ''brief'' refers to a regular
letter.
Professional vs. student briefs
In North American
law school
A law school (also known as a law centre or college of law) is an institution specializing in legal education, usually involved as part of a process for becoming a lawyer within a given jurisdiction.
Law degrees Argentina
In Argentina, ...
s, students usually study historical cases by "briefing" them. Law school briefs are shorter than court briefs but follow a similar structure: presentation of issue, presentation of facts, presentation of legal and policy arguments and presentation of outcome. In the United States, the practice of briefing cases for study began at
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class ...
in the fall of 1870 with the introduction of the case method of teaching by Professor
Christopher Columbus Langdell. Case briefing is a widely accepted pedagogical method among law professors today.
IRAC Case Briefing
IRAC is an
Abbreviation of Issue, Rule, Analysis (or some say Application), Conclusion.
When a potential client has an interview with an attorney and tells of the legal problem, the attorney, or office paralegal, will review prior case law to find out if the client does indeed have a problem that has legal remedy.
The formation of each case brief follows the same pattern: Facts, Issue, Rule, Analysis, Impact. A case brief may also include a dissent or concurrence if there is either in the particular case. The facts should include the important information from the case, and should also include the procedural history before it makes it to the supreme court. The issue statement should always be in the form of a question that will be answered in the rule section.
Some schools prefer students to list the Facts, Issue, Holding, and Reasoning.
See also
*
Amicus curiae brief
References
{{DEFAULTSORT:Brief (Law)
Legal documents