Brief (law)

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A brief or factum (latin for "act" or "deed") is a written legal document used in various legal adversary systems that is presented to a court arguing why the party to the case should prevail. In England and Wales the phrase refers to the papers given to a barrister when they are instructed.

When they are presented at trial to resolve a disputed point of evidence they are referred to as trial briefs. Alternately, at the appellate level they are referred to as appellate briefs. A legal brief can also be used as part of arguing a pre-trial motion in a case or proceeding. A brief is also sometimes called a memorandum of law.

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. When it is a trial or motion brief the brief argues that the court should rule based on previous decisions of controlling courts. In either case the brief may also include policy arguments and social statistics when appropriate, for example if the law is uncertain or broad enough to allow the appellate judge some discretion in his decision making, and 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.

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. Once again 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.

In American courts, the brief typically has the following parts: a table of contents; a table of authorities listing the cases, statutes, and regulations 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.

In North American law schools, 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 in the late 1800's and is a widely accepted pedagogical method among law professors today.

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