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TRIAL BRIEFS AND OTHER LEGAL MEMORANDUMS1

The trial brief and hearing memorandum are important instruments in civil trial
practice. For unknown reasons, they are rarely utilized and when they are used, they
appear to be inadequate or unusable for their stated purpose. From the judicial
standpoint, they are invaluable and of great benefit to the Court.

For purposes of this outline, trial briefs (hereinafter referred to as the “Brief”) and
memorandums are used interchangeably, but in the author’s opinion they are slightly
different. The memorandum is written argument directly in support of, or in opposition
to, a specific issue or motion arising before the Court. The entire memorandum is
directed towards the single topic or the motion before the Court at the hearing. The issue
is known, the motion has been filed and the memorandum specifically addresses it or
them.

Conversely, a trial brief is directed towards the entire trial, be it jury or non-jury,
and may deal with multiple issues that may arise. Many of the issues may never arise;
others will. It may include the elements that need to be proven, motions that might come
up, objections that might be made, predicates that need to be laid and even arguments that
will be made on directed verdict.

PRACTICE TIP #1: An informal survey of six of the civil judges in December of 2011
revealed that all six found trial briefs “extremely” or “very” helpful. All indicated that if
timely submitted they would be read by the judge. With that knowledge, it is hard to
imagine why an attorney would not submit a trial brief to the Court. Yet most do not.
Certainly if opposing counsel submits a brief and you do not, you start any trial or
hearing at a significant disadvantage.

WHAT IS A TRIAL BRIEF?

A trial Brief can come in many forms. It can be a written summary of the facts, of
the allegations or denials of allegations, of theories with the supporting legal basis for
each, or simply a summary of cases directed to certain issues or anticipated objections. It
can contain a summary of legal authority which will be relied upon during the course of
the trial.

The Brief can also be used to identify, itemize and list issues or elements that
must be proven or disproven. It can be used to remind the Court of the necessary
predicates that must be proven at trial for certain evidence to be admissible. These same
elements will eventually be reflected, most probably, in the jury instructions utilized at
the end of the case.

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Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or
continued validity, of the citation and their application to the principle(s) for which they are cited.
From the defendant’s vantage point, the trial brief can be used to highlight the
hurdles the plaintiff will have to jump or difficulties that the plaintiff will have to address
and overcome to have this matter submitted to the trier of fact. In essence, it will
establish the skeletal structure which will have to be constructed during the plaintiff’s
case. If the plaintiff fails to do so, the defendant can utilize his/her Brief as a good basic
foundation for the Motion for Directed Verdict.

The Brief can also serve as a memorandum as to specific issues or objections


which might come up during trial. For example, if it is anticipated that a witness will
attempt to render an opinion on a specific subject which is prohibited by case law, the
Brief can be used to educate the Court about both the problem and the law before the
issue even arises.

WHY SUBMIT A TRIAL BRIEF?

A trial brief can serve multiple purposes for both the attorney and the Court. For
the attorney, the preparation of the trial brief forces the attorney to critically exam her/his
case and the issues that may arise. It requires the attorney to lay out the elements they
must prove and analyze the defenses that have been raised and consider how they will be
proven and even force the attorney to determine which witnesses or pieces of evidence
will provide the underlying basis for these claims or defenses. It requires consideration
of possible legal objections to the methods that will be utilized to prove, or attempt to
prove each of the elements. It encourages early research to combat these potential
objections while at the same time assisting in developing the proper procedures to lay the
appropriate predicate.

A trial brief could be submitted for different purposes. It could be used as a


vehicle to provide the Court with an overview of the case. The factual scenario can be
structured from the point of view of the party submitting it. Clearly the facts set forth
need to have a valid factual foundation. It must be remembered, however, that an
attorney must disclose all facts pertinent to the issue, and not mislead the Court by
omission. See Rules Regulating the Florida Bar 4-3.3

PRACTICE TIP# 2: One must know their judge. The trial judge may have thirty years
of experience in the practice of law, but is new the civil bench. The knowledge and
experience level of the judge will determine, in part, what should and must be addressed
in the Brief.

WHAT SHOULD THE TRIAL BRIEF CONTAIN?

Remembering that the trial brief is to assist the Court, certain items are critical for
it to be of assistance. The brief should be clear, concise, organized and easy “accessible”
by the Court.

If the brief will require an understanding of, or an evaluation of, the factual
background, the brief should contain a clear statement or indication of what facts are not

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in dispute, and what critical facts are in dispute. The brief is being filed prior to trial but
the drafter must anticipate what facts may, and may not, be forthcoming at the trial.

Brevity is not only a virtue but also a necessity in a trial brief. Take the time to be
concise2. With the volume of reading materials supplied to a judge, there is only a
limited amount of time that a judicial officer can devote to preparing for a case.

The language should be clear and to the point. Unnecessary editorializing, critical
comments of opposing counsel or the client should be excluded. Long dissertations on
legal theories, detailed “micro” analysis of collateral issues and re-arguing what has been
argued at prior hearings is both unnecessary and harmful to your cause.

PRACTICE TIP #3: State you key points in the first or second page of the brief. State
clearly and concisely the issue(s), clearly state your position, and then as concisely as you
can state the reason why you believe the ruling should be as you believe it should be.
Save detailed argument for separate sections of the brief.

SHOULD IT BE ORGANIZED AND HOW?

Yes, it should be well organized, but no, there is not a required format. The better
organized it is, the more useful it will be to the Court. The more useful, the more likely it
will be read and maybe even referenced.

Much depends on the purpose of the Brief and the breadth of subject matter
covered within it. If the brief is focused on one or two topics, little organization may be
required. If, however, your brief is covering multiple topics or legal issues or theories
(such as in a trial Brief), it can become unwieldy and, therefore, unusable unless it is well
organized.

A table of contents keyed to numbered or lettered tabs allows the Court to go


directly to the topic of concern. Even sub topics listed within the text of your brief will
help the Court access the information you want him/her to review.

Ideally, counsel should be able to point the Court to the specific section of
concern on a particular legal argument. For example, counsel might say to the Court,
“Your Honor, if you will turn to Tab 4 and look at page 6 of the trial brief/memo I
provided to the Court before the trial started, you will find a summary of the cases that I
was just mentioning. In addition, just behind Tab 4 you will see the text of the cases
which we believe support our positions with the key points highlighted.”

SHOULD CASE LAW BE INCLUDED?

Absolutely! Many times Courts will want to read the specific case referenced or
at least have the ability to do so. Having a hard copy of the case on the bench is

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“I would have written a shorter letter, but I did not have the time.” Blaise Pascal , June 19, 1623 –
August 19, 1662 [Noted French mathematician, physicist and theologian.]

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extremely helpful. It would not be unusual to see sections of the opinion highlighted or
notation made on the copy by the Court when it is sitting on the Bench the morning of
trial.

PRACTICE TIP# 4: Many judges are becoming more comfortable and accomplished
with electronic filing and hyperlinks. If the judge to whom your case is assigned will
read briefs or memos on line and you have the ability to hyperlink cited cases, this can be
extremely helpful to the judge in her/his preparation for, and during, the trial or the
hearing.

Highlighting the appropriate sections of the case law or statute can also be
extremely helpful. Courts will find themselves reading a 23 page opinion only to learn
the legal point is a “stand alone” issue contained on page 22 – having no relationship to
the previous 21 pages the Court just read!

PRACTICE TIP# 5: Some judges may object to an attorney highlighting portions of a


case that are submitted to the Court. It is important to know a judge’s preference and
comply with her/his requirements.

Even cases that are adverse to your position should be included. In the brief they
should be analyzed and distinguished. If there is a key distinguishing aspect of the case,
that makes it inapplicable to the present situation, that aspect should also be highlighted.

PROFESSIONALISM POINTER: Both professionally and ethically an attorney is


under a duty to advise the Court of legal authority even if it is “directly adverse to the
position of the client.” Failure to do so is a violation of Rule Regulating the Florida Bar
4-3.3(a)(3). The duty exists even if opposing counsel himself/herself failed to do so.

If sections of state or federal statutes, ordinances, codes, regulations, etc. are


important, they also should be included, referenced and indexed or tabbed. The attorney
should be attempting to create a “one stop” document, that if an issues arises, the judge
will reach for that notebook or trial brief first.

SHOULD ATTACHMENTS BE INCLUDED?

If matters outside the facts and case law should be considered by the Court, these
matters should be included as an appendix to the trial brief and referenced therein. If the
case involves a breach of contract, include a copy of the contract. If visualizing the area
of the construction site, auto accident, property being condemned is helpful and will be
used at trial, include a copy.

If the attorney is preparing a demonstrative aid for use with the jury, to assist
them in understanding what is happening, consider providing an 8” x 10” version to the
Court in the appendix of your trial brief. References to the diagram, statutes, photos, etc.
in the written materials can be helpful to the Court when attempting to understand the
theory or defense being asserted.

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In some circumstances the relationship of the parties is complicated or the
timeframe of the various actions is confusing. Providing a flow chart can be of great
assistance to the Court. In other cases, where multiple parties or witnesses are involved a
synopsis of each witness by name and his/her relationship to the events can be helpful.

Judges are constantly aware that they will be faced with a request for a directed
verdict at the conclusion of the plaintiff’s case, the conclusion of the defense’s case, and
at the close of all the evidence. An attached checklist of the elements that need to be
proven on the primary claims and the defenses would be a great asset to most judges.

Consider making the appendix separate from the actual trial brief -- a little thing --
but extremely helpful to the Court. It allows the Court to open the attachments and have
it available as she/he reviews the Brief itself.

WHEN SHOULD IT BE SUBMITTED?

A key question and one worth some consideration. The answer is: it will depend
on the judge and the case. If the practitioner wants the trial brief read it needs to be
submitted sufficiently before trial to allow the Court the opportunity to review it. It is
extremely difficult, if not impossible, to read a trial brief during the actual trial.

However, a trial brief submitted too far in advance of trial may result in the brief
being misplaced, forgotten, or simply ignored under the assumption that the trial itself
will resolve and the Court does not want to waste its time reading a brief for a case that
will resolve. In addition, until the pleading and discovery has closed, the issues and
problems to be address in the trial brief have not crystallized.

The magic number seems to be three (3) business days before trial; that however
will vary. The attorney should check with the specific judge who will try the case – not
the judge to whom it is assigned; they may be different.

PROFESSIONALISM POINTER: It must be remembered that anything that is


supplied to the Court must also be supplied to opposing counsel at the same time and in
the same manner. If one is supplying the Court with a copy of a trial brief by hand, it
would be inappropriate and unprofessionalism to provide the copy to opposing counsel
by mail knowing it might take two or three days to reach them.

Of critical importance is to provide a courtesy copy directly to the Court in


Chambers with, of course, a copy to opposing counsel. In this age of electronic filing,
many trial briefs are filed electronically with the clerk but never make it to the judge.
Further it is difficult for a judge to make her/his notes on an electronic copy, at least in
the Ninth Circuit.

HOW LONG SHOULD A BRIEF BE?

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There is little to no guidance as to the limit of the number of pages in a brief. The
word “brief” should, however, provide some clue.

The Florida Rules of Appellate Procedure, Rule 9.210(a)(5) suggest that the
“initial and answer briefs shall not exceed 50 pages in length.” More pointedly, reply
briefs “shall not exceed 15 pages in length. At least in this author’s view, a trial brief
should be limited to no more than 5 to 7 pages on each major topic within the brief;
shorter is even better. As a rule of thumb, if your trial brief approaches or exceeds 20
pages, there is a strong chance it will not be read, or if read it will only be skimmed.

PRACTICE TIP #6: Remember that in the appellate court the judges have staff
attorneys to assist in the reviewing these briefs, and are not pulled away from their review
of matters by daily hearings or motions. The rule of thumb is the shorter the better – if
you want it read.

FINAL THOUGHTS:

Keep in mind the purpose of the item you are submitting. If because of the
length, the time submitted, the organization or lack thereof, or the lack of legal authority,
it will not be read by the judge, you have wasted your time.

Judges want to know the issues, the law that applies and they need to know it well
in advance of the hearing or trial. By educating the judge and supplying her or him the
supporting legal precedent you are making your job and the judges much easier. Think
how much anyone hates to be handed a case by the other side at the hearing or trial. A
judge reacts the same way.

Even if you are asking the judge to take a new or novel approach to an already
established legal principle, a judge familiar with the law and the reasoning behind it may
be more likely to revisit the underlying principle and possibly deviate from established
authority. At some point the proponent is going to have to “brief” the issue for the
appellate court; why not do it for the trial court and maybe avoid the appeal!

Yes, there will be the occasional judge who will not read trial briefs or
memorandums. But the effort in preparing the brief will force you to know the law and
to review the legal support you have, or do not have, for your position. The effort is not
wasted and most time you will be rewarded by a trial judge who is knowledge of both the
law and your position. And most certainly, the trial judge will appreciate your efforts.

Revised January 24, 2012 Judge John Marshall Kest 3


(Copyrighted)

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Comments, recommendations, “practice tips” and “professionalism pointers” are solely those of Judge
John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the
individual procedures, policies and requirements of that judicial division or judge.