Excerpted from New York Civil Practice Before Trial by Michael H. Barr, Burton N. Lipshie, and Sharon Stern Gerstman
In New York practice, “brief” and “memorandum of law” are used interchangeably to refer to the document providing legal authority and argument in support of a motion. In New York state courts, the moving party is not required to file a memorandum of law or brief in support of a motion, but should generally do so.
Motions rarely turn strictly on factual matters, and there is almost always some legal authority that should be cited in favor of the motion. If legal points are to be made, they should be set forth in a separate brief, and not shoehorned into an attorney’s affidavit. The attorney cannot swear to the truth of a legal argument.
Opposing counsel may serve an opposition brief containing a statement of reasons why the motion should be denied, along with supporting authorities. If the moving party filed a brief, the opposing party should file an opposing brief, unless its defense is based solely on factual matters that can be covered in affidavits and appendices.
In urban counties especially, briefs are particularly important. In those counties, many motions are decided on the briefs without oral argument. Even if the judge hears oral argument, the judge is likely to review the briefs and to rely heavily on them. When a judge writes a memorandum of decision in a complicated case, he or she will use a well-written brief as a major resource. Attorneys should keep these considerations in mind when writing a brief, whether in support of or opposition to a motion.
The CPLR does not place restrictions on the length and contents of briefs, although individual judges may have their own requirements set forth in local rules.
10 Tips for Drafting a Winning Brief
- Include tables, out-of-state authorities, and parallel citations.
It is always good practice to include a table of contents and table of authorities. You should also help the court by attaching copies of out-of-state authorities, and including parallel citations to the official reporter, as well as the West reporters.
- Be concise.
State clearly and concisely exactly what you want the court to do, and why. Don’t clutter the brief with irrelevant introductory material. Use the introduction as an opportunity to summarize why you should win and to provide the court with a road map for the balance of the brief. List your points of law in order of importance and number them. Don’t write an academic treatise on the law. The brief should be a tool of advocacy, not a repository of comprehensive information and theories, unless the case involves an issue of first impression.
- Omit boilerplate.
Most judges do not need to read extensive expositions on well-known principles of law. Judges deal repeatedly with many topics, such as the basic law of summary judgment, the principles governing motions to dismiss for failure to state a claim, and the scope of discovery. Mentioning these principles in passing with one or two citations is fine, but do not devote substantial space to them. A footnote near the outset of the argument section will often suffice.
- Summarize your argument.
Put the essence of the argument in a “preliminary statement” or “summary of argument” at the beginning of the brief. The judge should not have to look through more than this introductory section to determine what the motion seeks from the court, why you are seeking it, and the reasons you should prevail.
Relate the brief’s body to the major themes and key facts you summarized at the beginning. When the brief is finished, review the summary to make sure it ties together the arguments in the brief.
- Relate facts to argument.
State the factual background of the motion clearly and succinctly, with citation to the evidentiary record that you are placing before the court. Omit irrelevant facts. Not all facts relevant to the case are also relevant to the particular motion before the court. Carefully select only those facts that relate to your argument.
- Support facts.
Do not refer to facts that are not supported by affidavit or admitted in the pleadings. If certain facts are important to the motion, but are not yet part of the court file, draft and file appropriate affidavits or submit documentary evidence to supply the facts.
- Follow these citation principles.
You can help your case by adhering to the following principles when citing cases:
– Select the strongest cases and state their holdings clearly. Don’t use string citations all supporting the same point. Rely on the leading case, the most recent case on point, or both.
– Explain or distinguish contrary authority. Don’t pretend it doesn’t exist. Ducking issues will irritate the judge and undermine your credibility.
– Don’t rely on the headnotes of the reported cases. Read all cases you cite to make sure they are cited accurately.
– Avoid citing cases for a proposition of law when the result of the case is harmful to your position.
– Include internal citations to indicate where the relevant language appears. Be sure to check recent decisions for changes in the law.
– Check the subsequent history (Shepardize or Key Cite) for each case you cite.
– Parallel citations should be included as a courtesy to opposing counsel. However, they should never be the only citations used. Judges generally have only the official reports or advance sheets available in their chambers.
– In an appendix to the brief, attach a copy of each out-of-state case you cite, including federal cases. Judges may have only New York decisions readily available in chambers.
Remember that every contact with a court will affect your reputation. A court’s ability to rely on your written and spoken word is the keystone to a good reputation. Lack of accuracy in legal briefing will leave the impression that your work is sloppy, or worse.
- Minimize rhetoric.
An engaging, interesting, and forceful style is always welcome, but avoid the temptation to use colorful rhetoric, humor, sarcasm, and emotional appeals. Briefs are aimed at judges, not juries. Judges want to know the essence of the issues raised. Overly emotional or colorful language creates suspicion that the arguments are weak. Use adjectives sparingly so that they will have maximum impact. The strength of your position should appear from a straightforward presentation of the facts and the law.
- Avoid personal attacks.
A brief that characterizes the other side as “blatant” or “deceitful” is both distasteful and distracting. If this approach is truly justified, chose the language carefully and back it up with facts. Clients may enjoy such language, but courts do not.
- Don’t patronize the court.
State arguments positively and diplomatically. Don’t tell the court that failing to rule as requested would be “reversible error” or “clearly inappropriate.” Telling a judge to her face that she will be reversed may be regarded not only as an insult but also as a challenge.
About the Authors
Michael H. Barr is a partner with Dentons US LLP in New York City. His practice concentrates on complex commercial, class action, insurance coverage, and securities litigation across a broad spectrum of substantive areas, including consumer fraud, environmental, insurance, trade regulation, real estate, professional liability, and contractual.
Burton N. Lipshie is the Managing Attorney of the 60-lawyer Litigation Department of Stroock & Stroock & Lavan in New York City, and the firm’s national litigation coordinator. He is responsible for providing procedural expertise in all litigation matters handled by the New York City office, and for creating and running programs on litigation skills and advanced legal writing. He has a general litigation practice, with an emphasis on motions and appellate work.
Sharon Stern Gerstman is of counsel to Magavern Magavern Grimm LLP in Buffalo New York. For 29 years she worked for New York Supreme Court as the Principal Law Clerk for Hon. Joseph D. Mintz of the Eight Judicial District (Buffalo) of the New York Supreme Court (1981-2009), and as a Court Attorney/Referee in charge of ADR for the Niagara County Supreme Court (2010). She is also an adjunct professor at the University of Buffalo Law School, where she has taught New York Civil Practice since 1987.