For Ressearcher_D Only

at last!!!!

Please remember that the last day to submit any work is Sunday, February 23rd. please submit your test by Thursday midnight at the latest!

Test 6 is relatively straightforward and considerably less work than the last few weeks.

Just a few notes for your brief this week (additional important notes at the bottom of this page also)

1) Be sure to correctly phrase your issues on appeal. Errors at trial involve the trial court's misapplication of the elements of your statute -- look to your case law. Otherwise, your research will provide nothing of benefit. Research the court structure to make sure you’re bringing in the right court – don’t leapfrog! Again, the quality of your research will be greatly affected! Note that Daire provided law and the issue in response to Test 4 if it was posted on time.

2) You may want to study jury instructions regarding the issues in question, if you can locate them. They can provide a lot of insight, but your state secondary encyclopedias and journals will be more readily available.

3) Frequently, the most difficult parts of this assignment regard first, knowing where to begin. And second, knowing where to end.

· Begin with your legal issues. Read your court opinions, and study secondary authority

· remember that the courts appreciate brevity, as do we! In fact, many if not most courts specify a maximum number of pages in the brief itself. It is not the length of the assignment that matters, but rather, the effectiveness of your arguments, and the weight of your authority.

· When conducting legal research your goal is always to locate mandatory authority in support of your arguments. Remember, provide a thorough application of law to the facts! Don’t just spit out the law—you want to clearly show the court that the facts in your case are similar enough that they must follow the reasoning of the court you’re citing, or they differ significantly enough that law working against you should not apply.

4) Study the web sites provided in the instructor memo from week five. Some of them provide excellent sample briefs – studying these will clearly indicate how appeals are argued, how the issues are phrased, etc. Take advantage of any resources available to you – the more you understand the appeals process, the clearer your goals will be. I have pasted the websites below that where provided in week five memo.

Appellate Links:

http://law.duke.edu/curriculum/appellateadvocacy/guide.html

Note, if the link above does not work, copy/paste it into your browser)

http://www.appellate.net/articles/gdaplbrf799.asp

http://www.appellate.net/briefs/defaultNew.asp

Samples for REVIEW ONLY – watch plagiarism)

5) A simplified appellate brief (very simplified!) is available through Sample Docs on the main course page. Use this to illustrate format and the fundamentals of what's involved. I have attached the SAMPLE provided in the attachments of the homework post assignment board.

Formatting

Please do NOT use a separate page for each section of the brief. A line break or two will suffice and save time and paper (i go through and delete all unnecessary white space prior to printing these) -- any font/margin settings are fine.

If you follow the formatting directions above, your brief will likely run between 4-5 pages -- you only need to cite one case and your statute -- if you have more, that's fine, but courts limit the number of pages... ours would certainly be less than eight if we enforced a limit.

The best thing you can do is to jump in and get your feet wet. Try to have fun with this assignment, and consider how everything you’ve learned in the last few months is now coming together.

· Appellate Brief Recommendations

Frequently, the two most difficult areas in this assignment regard first, knowing where to start:

Step One: Identify your issues. Consider the following:

Is it

· Federal or State? Kant is charged under STATE statutes

· Civil or Criminal? Kant is appealing a CRIMINAL conviction

Step Two: Begin to Research your issues.

· What secondary sources and helper aids will be most beneficial?

· Don’t forget to cartwheel if you’re having trouble with searches/terms.

· Shepardize/KeyCite any cases you find. They can lead you to additional cases

· Carefully study a variety of court opinions, as well as relevant secondary authority, on your legal issues first. You need to fully understand the concepts and how the court views them. How have other attorneys presented arguments on these issues – read and understand both sides

Step Three: Once you fully understand your legal issues, begin your search for specific law to support your arguments. Remember to check statutes, and again, don’t forget the full value of Shepard’s/KeyCite.

Step Four: After you fully understand the concepts, arguments, and your supporting law, begin your analysis.

Step Five: Prepare your Brief – note, you may find it more beneficial to work out of order. For instance, presenting your legal questions, or stating the case, may focus you.

Your second big challenge will likely involve knowing when to stop:

· For a single-issue scenario, a couple of cases and a statute will normally suffice IF you apply the law to the facts. Weave the law into your facts (and vice versa) throughout the arguments. Don’t just spit out the facts, and then state the law. Use the facts from both cases to illustrate how the law applies, or does not apply, in Kant’s case. As mentioned previously, go back to the components of legal analysis from last session, if necessary. The tools remain the same.

· Remember that your goal is to locate mandatory authority in support of your argument/s – investigate and appreciate your state court structure with regard to this issue.

Brief Components:

Cover Page:

· Be sure to check format for your jurisdiction. Correctly identify the Appellate Court and note your Trial Court. Ensure that your parties and their roles are correctly identified.

Table of Contents:

· Point headings and subheadings listed; accurate page references.

· Correctly note pages on which each authority is cited

Table/Index of Authorities:

· Divided into sections: cases, constitutional provisions, statutes, and miscellaneous.

· Cases should be in alphabetical order.

· Correct citation format – check the Bluebook

Statement of Jurisdiction:

· Simple statement setting forth the statute, court rule or state constitutional provision which confers appellate jurisdiction over your issue and trial court. Look to your rules of court/state code for this.

Questions Presented:

· Issues of Law only – WATCH HOW YOU PHRASE THESE! Study some briefs if this is unclear.

· Do not retry the case

· Do not raise factual issues.

· Legal Questions should suggest an answer favorable to your client

Statement of Facts:

· Introduces the firsttime reader to the facts of the case.

· No legal argument presented here.

· Nothing unessential.

· Nothing that doesn’t serve a purpose in advocacy:

· Highlight key favorable facts through use of positions of emphasis and strong, active language.

· Deemphasize unfavorable facts by juxtaposing them with favorable facts, burying them midsentence or midparagraph, or using flat, general language

· Convey a tone supporting, not arguing your position

Argument:

· Each major section of the Argument opens with a thesis paragraph

· states the relevant law or legal standard;

· states your position on the error alleged at trial;

· provides a guide to how the argument will unfold.  

· Major issue presented first

· Paragraphs open with an assertion or claim about this case, NOT observation or exposition of the law

· Apply the law to the facts -don’t just reiterate the law!!!!

· Show the court why this case should be decided in your favor

· If citing case law, describe the facts of that case to illustrate its relevance

· Argue by analogy or distinction to give concrete examples of how courts have applied the law

· Limit quotations

· Anticipate and counter opposing counsel’s arguments

· Don’t rely solely on the law – your arguments should be logical and fair on their own merits

Conclusion:

· Ask for the specific relief sought

Appendix:

· None for this assignment

GRADING SCALE:

Legal Research (includes issue spotting and phrasing) – 45%

Legal Analysis – 45%

Document Formatting, Legal Citation Skills, Jurisdiction– 10%

Finally, watch plagiarism!!!!

It’s extremely easy, and incredibly tempting to find yourself crossing lines without even thinking about it – especially when reading opinions or briefs online! By this point, we’re familiar with your writing style, your strengths and weaknesses, your rationale and analysis… if you find it on the web, it’s very likely that we’ll find it, as well

· Apply your own analysis

· Correctly cite any other author’s work

· Avoid any and all instances of copy/paste.

Appellate Links:

http://www.appellate.net/articles/gdaplbrf799.asp

http://www.appellate.net/briefs/defaultNew.asp

(Samples for REVIEW ONLY – watch plagiarism)

Okay, have fun with this. You should see a lot of what we’ve covered in the last few months come together here, so as challenging as this is, it should be incredibly gratifying to see how far you’ve come.