Writing Legal Briefs

The process of writing a legal brief assumes one knows how to do legal research using the Internet, Library resources, and/or a textbook. The task may involve finding a case on one's own or working with an assigned case or choosing from a list of cases. In any event, a legal brief will be around two or three pages in length, although some professors will accept a well-done, one-page brief, and it is interesting to note that in legal practice, actual briefs may run up to the legal limit of fifty pages. Librarians may be trained to assist with this kind of endeavor, but the main thing when writing a legal brief is to think like a lawyer. There are many different purposes to briefs, such to make the case for defending a client, to argue for some precedent at law, or to provide a friendly guide for future judges about how they ought to interpret something. Make sure any brief done is consistent with the purpose as reflected by the instructor's instructions or philosophy.

Briefs are defined as written arguments submitted to a judge or justice that a lawyer or parties to a case use to present their side of a dispute or to clarify some point of law. The writing has the primary characteristic of argumentative subtlety. Briefs have the same force as oral arguments presented before the court; perhaps more so, since written briefs are usually presented before the actual trial in pre-hearing phases. With regard to formatting, there are certain section headings that one must make sure to structure their briefs around, although some leeway is usually allowed, and although practices vary, there is sometimes different formatting required for the basic Criminal Law scenario and the Constitutional Law scenario (which includes amicus curiae briefs).

1. Facts of the case -- a concise statement of the facts from a legal point of view
2. Issue of the case -- what parties had standing, and what specific concepts and terms were involved
3. Decision of the court -- including an analysis of any concurring or dissenting opinions in previous case precedent
4. Reasoning of the court -- analysis of the thinking process and logic used by previous judges
5. Citations to support previous judgment -- only the important precedent cases, not all of them
6. Rule of law -- a concise summary of the main precedent established, separate from the dicta, or circumstances of the cases
7. Dissent -- other rules of law implicit or inherent in dissenting opinions

1. Questions for Review -- a description of the question(s) presented for review
2. List of Parties -- a list of parties to the proceeding
3. List of Authorities -- a list of authorities and persons interested in the case
4. Citations and Opinions -- previous judgments by the Court in similar cases
5. Jurisdiction -- a brief statement of the Supreme Court's jurisdiction in this case
6. Constitutional Provisions -- the constitution's sections most relevant to this case
7. Statement of the Case -- the relevant facts, or dicta, in the case
8. Summary of Argument -- the points of fact and law to be orally presented
9. Detailed Argument -- the main points of fact and law to be concentrated on
10. Relief Sought -- a conclusion stating the relief the party is seeking

Bissonette v. Haig 776 F. 2d 1384, aff’d 800 F. 2d 812 (8th Cir. 1986),aff’d, 485 US 264 (1988)

     FACTS IN THE CASE
     An armed group of Indians occupied the village of Wounded Knee, SD on the Pine Ridge Reservation in February of 1973. In response, federal law enforcement agencies, including the FBI, Marshals Service, and the Bureau of Indian Affairs Police immediately blockaded the village, closing all entry and exit roads. They were assisted by the Army, the South Dakota and Nebraska National Guards, and the US Air Force – the military providing surveillance, aerial reconnaissance, and equipment. The standoff ended ten weeks later when the armed Indians surrendering to authorities; two American Indians were killed and one US Marshal was severely wounded.
     ISSUES IN THE CASE
     1. Unreasonable seizure and confinement by the military contrary to the 4th Amendment and plaintiffs’ rights to unrestricted movement and travel
     2. Unreasonable search by units of the military through ground and air surveillance
     3. Assault, deprivation of life (in one instance), and deprivation of property contrary to the 5th and 8th Amendments
     Underlying these constitutional allegations is the Posse Comitatus Act of 1878, 18 USC §1385, which states in pertinent part that “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined [not more than $10,000] or imprisoned not more than two years, or both. Posse Comitatus means literally “the power or the authority of the county” – however, it is generally understood as the power by a sheriff to enforce the law and preserve the peace by calling the assistance of either military or federal authorities when necessary.
     REASONING
     The first two claims contend that unreasonable search and seizures were performed by the military contrary to the 4th Amendment. Because the Court long recognizes (in caselaw, Constitutional history, and Congressional Acts) that the use of the military should be limited in enforcing civil law, a reasonable test, or balancing test, must be considered. That is, a test that balances the interests of the individuals against that of the government.
     The Court identifies two primary governmental interests in supporting military assistance to civilian law enforcement: (1) “maintain order in times of domestic violence and rebellion”; and (2) “improve efficiency of civilian law enforcement by giving it the benefit of military technologies, equipment, information, and personnel.” After a review of several Congressional Acts, the Court was satisfied that Congress had set reasonable limits on the use of the military into civilian life consistent with the goals set-forth above and the underlying Constitutional principles, except when expressly authorized.
     Therefore, the 4th Amendment issue at bar hinges upon whether the military activity in connection with the blockade at Wounded Knee violated the express language or limits set-forth in the Posse Comitatus Act. “If the use of military personnel is both unauthorized by any statute, and contrary to a specific criminal prohibition, and if citizens are seized and searched by military means in such a case, we have no hesitation in declaring that such searches and seizures are constitutionally unreasonable.”
     However, the Court, relying upon an earlier Wounded Knee case, doubted whether the military activity and involvement at bar was “unreasonable” because, effectively, no justiciable controversy would exist unless the military involvement “actually regulate[d], forbid, or compel[ed] some conduct on the part of those claiming relief… the mere threat of some future injury would be insufficient.” Therefore, to qualify as a violation of the Act, one must find in the affirmative that military power exercised was done so in a regulatory, proscriptive, or compulsory manner. The Court, relying on this reasoning, allowed the unreasonable seizure and confinement claim to survive a Motion to Dismiss, but rejected the unreasonable search claim on the same grounds set-forth above – that is, they were not regulatory, proscriptive, or compulsory.
     Thirdly, as to the due process allegation, the Court summarily dismissed this claim.
     ANALYSIS OF THE CASE
     The broader and more important question really is whether the military should ever be used in civilian law enforcement contexts. Courts do not take lightly military involvement in civilian affairs, as Bissonette even in implementing a reasonable/ balancing test of sorts, stressed emphatically that the use of military force for domestic purposes, absent some express congressional authorization, is eyed with “a long tradition of suspicion and hostility.” Nevertheless, the simple answer to this broader question in the first sentence is ultimately “yes.”
     Military prowess, technology and expertise in handling certain crisis situations cannot be overstated. But, because such personnel are not typically trained (to the extent of civilian law enforcement anyhow) on 4th and 5th Amendment guarantees, their involvement may “chill the exercise of fundamental rights.” Therefore, Congress, understanding this delicate balance (that is, the necessity to quell civil unrest or maintain order – versus – individual rights and a presumption that the military should not enforce civilian laws) enacted certain exceptions to the Posse Comitatus Act as they are set forth in various sections of the United States Code and elsewhere.

Humanitarian Law Project v. Reno (205 F.3d 1130 (9th Cir. 2000)

     FACTS IN THE CASE
     Six organizations and two American citizens challenged the constitutionality of the Antiterrorism and Effective Death Penalty Act of 1996 which authorizes the Secretary of State to designate certain groups as foreign terrorist organizations and subsequently orders that “whoever” “knowingly provides material support or resources” to such organizations, “or attempts or conspires to do so”, may be fined, imprisoned (up to 10 years), or both. “Material support” is broadly defined to include: financial support, lodging, training, weapons, identification, communications equipment, personnel, and other physical assets; “except medicine and religious materials.” Petitioners at bar wish to provide support to two such organizations, the Kurdistan Workers’ Party (PKK) and the Libertarian Tigers of Tamil Eelam (LTTE); both of which have been designated as a foreign terrorist organizations. Petitioners contend that any congressional prohibition restraining such efforts, presumably based on upon their association with the organization alone, would constitute a constitutional violation of their First Amendment rights to association and freedom of speech. Further, the petitioners claim that the Secretary of State’s authority to designate such organizations as terrorist is overly overbroad, and the Act itself is constitutionally vague.
     ISSUE IN THE CASE
     May Congress prohibit material support to foreign terrorist organizations, or is such a prohibition inconsistent with the First Amendment freedoms of expression and association?
     HOLDING
     The Court uphold a limited preliminary injunction against the US government on vagueness grounds, finding support that certain terms within the Act, namely “training” and “personnel”, were inherently vague. However, the Court disagreed with the petitioners regarding their First Amendment claims; finding a distinct difference existed between mere “advocacy” through political expression (always protected by the First Amendment) and the notion of “material” support.
     ANALYSIS
     The petitioners claim that the Act violates their freedom of association is based either on a misreading of the Act or an overly broad interpretation of Claiborne (see NAACP v. Claiborne Hardware Co., 458 US 886 (1982) – holding that “for liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims”). Nothing in the Act prohibits membership or association with a foreign terrorist organization, nor does anything prohibit praising or advocating such an organization. Rather, the Act specifically prohibits the giving of material support – and no constitutional right exists to provide terrorists, or any group for that matter, with the resources to buy and use weapons and explosives for illegal activity. In response, the petitioners counter that American-Arab Anti-Discrimination Comm. v. Reno, 70 F. 3d 1045 (9th Cir. 1995) (and to some extent Claiborne) explicitly requires… that to punish advocacy, the government must show that the donor specifically intended for his contributions to further some illegal cause or activity. The Court, however, disagrees once again, drawing a sharp distinction between advocacy and material support. Advocacy is the promotion of certain views either through membership or actual voicing of opinions; while the giving of material support is a right less protected in certain contexts. Further, the petitioners contend that the giving of material support, particularly in the form of monetary contributions, is in itself a form of political expression; and to punish such political expression is a clear First Amendment violation. They base this argument upon the presumption that the PKK and Libertarian Tigers are not only terrorist organizations, but also political advocacy groups. The petitioners’ reliance on Buckley v. Valeo, 424 US 1 (1976), however, is misplaced. There, the issue involved monetary contributions to organizations whose primary purposes were political advocacy – therefore, monetary contributions were used to promote, say, a person running for election and the resources needed for electioneering. “Under those circumstances, money, and the things money can buy, do indeed serve as a proxy for speech and demonstrate one’s association with the organization.” However, the Act under consideration is not aimed at regulating contributions for the purposes of mere political expression; but rather, aims to prohibit certain expressive conduct that leads, very often, to illegal activities. No one is suggesting that you cannot advocate a terrorist group on your local street corner, or even carry an Al Qaeda membership card. Certainly if the government can regulate contributions to political campaigns, then it would certainly follow that the government could place tighter restraints, including an all-out prohibition, on funds that lead to illegal activity. Therefore, since the goal is prohibiting certain conduct, not prohibiting mere expression or association, the breadth of the Act must only pass a constitutional intermediate scrutiny standard, not the higher standard of strict scrutiny; which would be appropriate if the government’s aim was to prohibit forms of pure expression, advocacy, or association, and the Antiterrorism Act passes this intermediate test with relative ease.

Last updated: May 21, 2008
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.