Legal Brief Genre Analysis

12/11/09

Legal briefs are the most widely used forms of communication in the legal community. Students, lawyers, academics, and clerks write legal briefs. Professors, coworkers and supervisors, peers, and judges read these briefs in turn. All of these actors share the same purpose – to fulfill the exigency for a simple reconstruction of a complicated case. Exigence, as Carolyn Miller describes it in her article Genre as Social Action, “is a set of particular social patterns and expectations that provides a socially objectified motive” (Miller: 31). The motive in this circumstance is to condense and share legal information. There are differing situations in which a brief is written and these differing situations alter the writer’s purpose and the audience’s perception and expectations. For example, a student could produce a brief in order to summarize the essential facts in a historical Supreme Court case, or a clerk could write a brief to identify the important rules of law for the judge’s perusal before a decision is made. The actors produce their work with the intent of providing concise and summarized information of a legal case. And although the structural framework of a brief is similar throughout the community, the writer’s purpose and audience reflect the subtle shifts of its content.

The content of legal briefs alters dramatically depending on its purpose and audience. Freedman and Medway posit that “genres [have] come to be seen not just as text types but as typical rhetorical engagements with recurring situations” (Freedman and Medway: 3). If a lawyer is submitting a brief to the court in an important case, the brief could be long and incredibly detailed. If a student is writing a brief which would only be used as a study guide for only himself, the brief could be short and perhaps miss critical details. These differing results associated with the legal briefs touches the center of my argument. I argue, though the form of a legal brief is the same – the content, purpose, and audience alters the finished product dramatically. Furthermore, the action of brief writing itself influences the writer and reader through the confining use of form and structure. Throughout this genre analysis, I will support the above argument by incorporating form analysis and how examining different social motives affect the rhetorical choices the writer employs while producing a brief.

Legal briefs are intriguing because they employ rhetorical appeals such as pathos, ethos, and logos in varying degrees depending on their purpose and audience. Rhetorical appeals are important in genre analysis because they provide a framework to examine the persuasive nature of the piece under construction. Through this analysis we can discover the purpose of a persuasive or non-persuasive brief. A lawyer attempting to influence a judge’s decision would use all three, whereas a brief summarizing a case with no intent to influence can be devoid of all three. For instance, a lawyer would employ logos in his brief by providing a logical argument in support of his preferred outcome. The logical structure would appeal to the audience by its sound logic. Ethos, a rhetorical appeal to character, can be employed by the lawyer in an attempt to influence the audience’s conception of the writer’s credibility and ethics. If the lawyer presents a strong argument in a credible manner, ethos may be effective. Pathos, the appeal to emotion or imagination, can be utilized in such a way as to present one’s client as the victim or offendor. In contrast, when a clerk writes a brief for a judge the language is neutral with no aim to influence the decision of the judge. The clerk’s purpose is only to provide the relevant information, not to affect the judge in his or her decision. The clerk’s position in the circumstance is to identify the essential facts of the case in which the judge can then decide upon. This lack of rhetorical appeals can also be found in the student’s presentation of a brief.

The student is not persuading, but attempting to summarize the case for future reference. The student’s audience is himself or the professor. Unless the assignment is to create a persuasive brief, the student would only provide summarizing data. In both situations – student or clerk – the audience is indicative of a guide or teacher. In effect of the audience, the pupil, in each circumstance, will attempt to evoke the rhetorical appeal of logos to persuade the teacher of the brief’s appropriateness. Therefore, the purpose and audience of the brief alters the usage of rhetorical appeals.

To elaborate on purpose and audience I will use the example of the student of brief writing. Generally, the pedagogical approach to brief writing is to simulate the real life recurring situation. For students, this may entail an assignment to compose a persuasive brief or a summarizing brief similar in form and scene to a law firm or a judge’s clerk. Freedman and Medway accept this practice but argue that, “school writing may imitate and adapt features of working genres but cannot be those genres…school writing [is] a solution to a quite different set of exigencies” (Freedman and Medway: 13 & 14). The exigencies in this case are the products of the dynamic relationship between teacher and student; the teacher provides assignments for the student to learn and develop intellect, and the student completes them to obtain his or her grades and broaden his or her understanding of the world. The student imitates the reasoning patterns and reproduces the form of brief writing, but ultimately, lacks the defining exigencies required to produce an authentic brief. In contrast, professional setting’s exigencies stem from situations which require in-depth responses. Millions of dollars could be at stake, a man’s life may be held in the balance, minority rights could be advanced; all contingent upon the persuasive manner in which a lawyer writes his or her brief. These exigencies cannot be reproduced in the classroom. Thus, brief writing in school is the solution to exigencies that are produced by the teacher. Despite the differences in the exigencies of brief writing the structural form generally remains the same.

The structure of legal briefs is the same throughout the varying situations of their usage. First, the brief begins by identifying the case in point. Next, the brief goes through the facts of the case, followed by the argument. The argument could be that of the lawyer, or if the case is already decided, that of the judge’s justification of his or her decision. Lastly, is the ruling of the case, either the one wished by the lawyer, or that decided upon by the judge. Each piece of this structure will be analyzed in the following pages. This analysis is significant in explaining the broad use of briefs and how they fluctuate in content, size, description, and clarity between the differing social legal circles.

Legal briefs begin with identifying the case. The citation form is crucial in identifying a case. Each case brought before a court is collected and entered into a case reporter such as the United States Report. For example, Adderly v. Florida, 385 U.S. 39 (1966), contains all the information needed to find the case in one of the reports. Adderly v. Florida is the name of the case, in which Adderly sued the state of Florida. The one bringing the suit, or plaintiff, will be first in the case name. The number 385 is the volume number of the case reporter, and U.S. is the abbreviated name of the case reporter United States Report, and 39 is the page on which it could be found, and 1966 is the year of the judicial decision. Having correct case citation is important because the case can then be referred to easily in one of the reports. This form of citation is hardly altered except in cases of student briefs. If the brief is used only by the student or if the professor, in this case the audience, doesn’t require it, the case would be titled as Adderly v. Florida (1966). All undergraduate brief samples written by students in my analysis followed the shortened form of case citation. The shortened case name wouldn’t affect the students work because the student would never physically look up the reporter, thus negating any need for the added citation. However, the social need for full citation overrules any diversion in this form in the professional or postgraduate academic circle.

Following the case citation, the writer presents the facts of the case. This is the area which would see drastic fluctuations in length and detail. The fluctuation would be on account of the audience and purpose for the brief. In presenting the facts of a case, the writer would apply the guiding principle in U.S. law called Stare Decisis. The legal community often uses Latin phrases and words to convey certain legal concepts. In the book, Scenes of Writing, the authors explain that language is an important aspect of analyzing a scene. They believe, “patterns in the language people use are as visible in scenes as are patterns of social behavior” (Devitt et al: 51), thus, the use of Latin phrases implies a connection between ancient and modern law. And that connection is reinforced by the legal communities’ use of Latin legal phrases such as Stare Decisis which means “to stand by that which is decided”. This principle plays a crucial role in the determinacy of case outcomes. Judges oftentimes follow precedent of prior cases. The precedent is the decisions of prior cases. If the facts of the case align with prior cases, the outcome may be possible to predict due to the similarity. Of course, judges and justices overturn precedent as societal norms evolve, but judges more often follow precedent. Thus, a lawyer arguing a case would want to be explicit in the facts similar to those of cases that ruled in his favor. The purpose is to persuade the judge to rule in one’s favor and precedent is an effective way to realize that end. Vijay Bhatia in his book, Analyzing Genres in Professional Settings, states that the facts of the case have two primary functions. First, to answer questions concerning the situation and consequences of the case; second, to educate the reader/learner on the legally significant and insignificant facts of the case (Bhatia: 129). The Supreme Court in their instructions for brief writing state briefs should be, “free of irrelevant, immaterial, or scandalous matter” (Supreme Court). This might narrow writer’s description of facts, even if they are significant to the case at hand. Here, the audience insists on standards, and the same might be said for other courts. What is excluded can be more important than what is included.

In student briefs the purpose is not to persuade a judge, but to learn the history and setting of the case. Therefore, students briefs can be vague, imprecise, and, if it is not to be graded, extremely short. The composition of the facts of the case changes in its importance and execution depending on the requests of the audience and the purpose of the writer. Through the standard structure remains the same, brief writers must alter their content to conform to the social purpose of their writing.

Presenting the argument is the most important rhetorical aspect of the genre. Here, the lawyer presents his argument in an attempt to successfully persuade the judge to rule in his favor. If a brief is written on a case already decided this will be the section where the judge’s argument or justification for his decision would be found. In a persuasive brief, presenting the argument combines the facts of the case with elements of decisions from past cases. Here, appeals to stare decisis come in to affect the position of the client’s case. The judge or lawyer would first state whether the facts of the case are similar to others. If the case is similar or different, the reasoning will include a logos appeal to decide the case in a particular manner. X has similar characteristics as Y, therefore X should be decided in the same way. This reasoning is referred as ratio decidendi, another Latin phrase meaning “the rationale for the decision”. The audiences for the judge are the parties to the cases, and depending on its position in the judiciary, lower courts. Thus, the brief concerning a case already decided would contain the judge’s argument or justification to the parties of the case and other courts the reasoning behind the decision making process. The audience for the lawyer would be the judge him or herself. Thus, the ratio decidendi would be structured in such a way as to persuade the judge by the merits of his client’s side. In non-persuasive briefs the purpose is to compact the reasoning found in the argument to include only the significant details of the case. The student could refer to his brief to obtain the key factors in the argument. This section of the brief also varies in length. For example, if a case is so similar to another case, the individual may appeal to stare decisis and not complicate the brief by adding dicta. However, if a case is extremely important or complex, the judge or lawyer may provide a detailed argument to persuade or justify his or her position. The purpose and audience shift the rhetorical choices available to the writer depending on the situation in which the brief is written.

The final section in this genre is the decision. Here, the judgment is made for one side or the other. If the brief is written to persuade a judge, then this is where the lawyer would state his or her preferred solution to the case. If the brief is written on a case already decided this would be the section that contains the decision of the judge. This section is usually one or two sentences long. Since the reasoning for the decision was in the previous section, this part mentions the final decision only. The main body of the brief flows with the intent to influence the outcome and conclude the case in one’s own favor, be it judge or lawyer. In a brief written on a past case, this would be the logical conclusion of the judge supported by the facts and argument sections. The decision is the most important piece in the brief, but is also the shortest.

The legal brief is the foundational genre of legal writing both professionally and academically. The strict rules of form in brief writing can exclude members of the non legal community. The form can also exclude important information which would not fit within the structure provided. Suppose a student did not want to conform to the form of brief writing.

Would the lack of specific structure diminish the meaning and purpose of the brief? I don’t think it would, but for the readers who are looking for specific information in specific places such as the facts of the case, it would be frustrating to look throughout the brief to find the scattered facts. Therefore, the structure is important for quick dissemination of the information and for its acceptance in the larger legal community, but may not be required for an individual to understand the case. The writer’s purpose and audience influences the content of the brief more than any other variable. And the language and rhetorical appeals shift depending on the position and intent of the writer. The brief must have some flexibility to maintain its form and function within such a large community. However, the brief’s structure also implies a confined form to which a writer must adhere, thus influencing the rhetorical choices available to the writer. The inherent contradictory structure still provides the most beneficial and accepted way of briefing cases, and that is why it is still widely used today.

Works Cited

Bhatia, Bijay K.. Analysing Genre: Language Use in Professional Settings. Londan: Longman, 1993.

Devitt, Amy, et al. Scenes Of Writing: Strategies For Composing With Genres. London: Longman, 2004.

Freedman, Aviva and Medway, Peter. Learning and Teaching Genre. Carleton University: Boynton/Cook, 1994.

Miller, Carolyn. Genre as Social Action In Genre and the New Rhetoric. -: Taylor & Francis, 1994.

United States of America. Supreme Court. Rules of the Supreme Court. 2007. Accessed: 2/1/09

<http://www.supremecourtus.gov/ctrules/ctrules.html>.