What’s in a Legal Brief?
My book Bad Lawyer drops this May. It’s about my wack experiences in law school, courthouses, and law offices. The idea is to demystify law as a revered profession. And in anticipation of its release, I’ve decided to do a series of accessible and hopefully entertaining primers on legal topics. I think a lot of people are curious about what exactly is taught in law school but are intimidated by the unnecessarily esoteric and elitist way the material is presented.
So here is my attempt to show you it isn’t that scary and can at times even approach enjoyable.
Legal writing is by far the most useful class taught in law school. And by useful I mean useful to the actual practice of law. And by the practice of law I mean litigation, because I’m still not entirely sure what transactional lawyers do. But even if you don’t practice law (hi), legal writing still useful because we all need to write strongly worded emails on occasion. Big ups to my legal writing instructors for helping me develop the skills I later used to get 100% of my group’s money back on an Airbnb that was, quite frankly, fine.
In law school, all 1Ls—or first-year law students in inane lawyer speak—take legal research and writing, or LRW.
The primary LRW assignment was writing a brief regarding whether the “English Only Policy” at a fake chain restaurant called “Spun Steak” was legally permissible. The class was divided into two groups. The first half was tasked with writing a motion for summary judgment on Spun Steak’s behalf, arguing the policy was legally permissible and the case should therefore be dismissed. The other half was tasked with writing an opposition to the motion for summary judgment, arguing the policy was illegal and the case should go to trial. We weren’t expected to determine which side was “correct” but rather to argue a predetermined position, simulating what lawyers do for their clients.
We used CREAC—conclusion, rule, explanation, application, and conclusion—to advocate for our side. We looked up cases and argued the court should rule for our side by comparing those cases, and the rules announced therein, to our facts at hand. Below is a table of contents that outlines the argument. Headings are a big deal in legal writing. One legal boss told me the court should be convinced your side wins from the headings alone.
The next year, when I TA’d, my 1L students had a sexier assignment than Spun Steak. Theirs was based on the Woody Allen lawsuit against American Apparel. The then-trendy clothing company had posted billboards around Los Angeles and New York using an image of Allen from Annie Hall without Allen’s permission. Our students were given fairly similar facts. Half the class had to argue that American Apparel illegally used Allen’s likeness, and the other half had to argue it was fair use. The most alarming aspect of the whole thing was that a lot of my students had never heard of Woody Allen. Nerds!
Since legal writing isn’t tested on the bar, most people don’t take Advanced Legal Writing. I did, because it was the only law school subject in which I had any confidence. Legal writing is mostly just being a sassy little bitch, which I majored in in undergrad. (In that vein, the late Justice Scalia is known as one of the best legal writers and he is sassy as hell. We read his book in LRW.)
My Advanced Legal Writing class was taught by a woman who had fully given up. Rhonda wore tracksuits every day and guzzled Diet Coke from the bottle. There were only five students in the class, and she constantly mocked us to our faces.
I loved her.
Aside from her lust for a student she called “Bad Brian,” the only thing that seemed to make Rhonda happy was her favorite case, Smith v. Midland Brake (1999)—a convoluted nineties Tenth Circuit case about the Americans with Disabilities Act (ADA). Midland Brake holds that if an employee with disabilities can be accommodated by reassignment to a vacant position, the employer must do more than merely consider that employee alongside other applicants. Instead, the employer must actively offer the employee with disabilities the vacant position. But as with most legal principles, there are like a thousand exceptions. The case is confusing. And obviously not particularly interesting. But Rhonda talked about it constantly and had a revelation about it almost every day. It seemed very personal to her.
Our big assignment was a bench memo—or a document written by a law clerk for an appellate judge—about the ADA that would necessarily rely on Midland Brake. The fake case was called LeBlanc v. Sunshine Foods. The plaintiff was an employee with a disability who claimed his former employer failed to accommodate him under the ADA. The defendant moved for summary judgment. The legal issue concerned the appropriate rule to apply when the ADA’s duty to reassign an employee with disabilities to a vacant position conflicted with an employer’s policy to hire the “most-qualified applicant” for a vacant job.
In my “brief answer,” which was not particularly brief, I explained that under the majority interpretation of the Supreme Court’s ruling in U.S. Airways, Inc. v. Barnett, the fictional court would likely find that reassignment in contravention of Sunshine’s most-qualified applicant policy was reasonable “in the run of cases” under the ADA. Mr. LeBlanc had therefore likely offered sufficient evidence to defeat Sunshine’s motion for summary judgment.
The law school assignments dealt with civil law, meaning money was at stake. In my actual legal practice, I did criminal law, meaning my clients’ liberty was at stake. But the format is basically the same.
To break it down, I’ll use an appellate brief I happened to win!
The brief begins with a statement of the case, or its procedural history. In this case, my client was charged with one felony count of possessing a baton (insane that that’s a felony, I know). His trial lawyer filed a motion to suppress the evidence under the Fourth Amendment, which the judge denied. His lawyer then filed a motion to set aside the information and renewed his suppression motion, which the judge also denied. The parties then negotiated and my client took a no-contest plea (meaning he admitted the facts but not his guilt) to the weapon charge, which preserved the right to challenge the denial of the suppression motion on appeal.
So on appeal, I did just that—challenged the denial of the suppression motion.
Next comes the statement of the facts. Here, an officer pulled over my client for false registration tabs. Another officer heard the dispatch and recognized my client’s name from a reported domestic violence dispute. The officer asked my client to get out of the car and handcuffed him. He searched my client’s person incident to arrest. He placed my client in the cop car and then searched his car and found the baton, which was actually a mini-baseball bat.
Then comes the argument section, which starts with a statement of the legal rule to be applied. Here, that’s the Fourth Amendment, which prohibits unreasonable searches and seizures. I wrote a whole primer on it which you can read here. The Fourth Amendment requires a warrant to search or seize unless there is an exception and if there is neither then the evidence is thrown out.
Then I summarize my argument, which in this case was that the officer conducted a warrantless search of my client’s car with no exception to the warrant requirement and therefore the fruits of his search should have been suppressed.
Then I go through and explain in sections why each exception does not apply. I argue that the search cannot be justified as a search incident to arrest because my client was secured in a police car at the time of the search, and there was no suggestion that evidence of the crime of arrest was contained within his vehicle. I explain the search incident to arrest exception, then tease out the case law on the subject and show that under my client’s facts, this exception does not hold.
I next argue that the plain view exception does not apply because the officer had already illegally entered my client’s car when he noticed the baton, meaning he was not in a lawful vantage point. I explain the plain view exception, tease out the case law, and apply them to my facts.
I next argue that the prosecution failed to show the baton would have inevitably been discovered during an inventory search. I again explain the exception, tease out the case law, and apply the facts of those cases to the facts in mine.
Finally, I argue that holding for the government would undercut the policy concerns behind the Fourth Amendment. I explain that the Fourth Amendment was designed to protect citizens from the unfettered power of the state, and the California Supreme Court has stressed that an inventory search must adhere to pre-existing policy to justify a warrantless search is due to “the risk that an inventory search will be a ruse for general rummaging.”
In this case, a holding for the government would allow officers to search a vehicle without justification whenever the defendant is arrested and transported to the police station, leaving the car behind. This would give officers carte blanche to search cars for criminal evidence based on mere whims. To honor the Fourth Amendment and the policy reasons behind the inventory exception, the prosecution must be required to offer credible evidence that the car was inventoried according to standard procedure—which it didn’t do here.
My conclusion is just one line: For the reasons set forth above, my client’s conviction should be reversed. Except I use my client’s actual name.
Okay, that’s a brief, folks! (Not brief.)