Structure & Organization

STRUCTURE AND ORGANIZATIONPERSUASIVE BRIEF- WRITING 2016 SERIES

Premier Date: September 21, 2016

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Premier Date: September 21, 2016

© 2016 DailyDAC, LLC d/b/a/ Financial Poise™

STRUCTURE AND ORGANIZATION

PERSUASIVE BRIEF-WRITING 2016 SERIES

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WE WOULD LIKE TO TAKE THIS OPPORTUNITY

TO THANK OUR SPONSORSs

© 2016 DailyDAC, LLC d/b/a/ Financial Poise™ 3

meet the faculty

PANELISTS

Honorable Alison Conlon Circuit Court of Cook County

John Martin Martin Sirott LLC

Adam Hirsch Butler Rubin Saltarelli & Boyd LLP

MODERATOR

Robert Michaels,

Robinson Curley & Clayton


Practical and entertaining education for business owners and executives, accredited investors, and their legal and financial advisors. For more information, visit

www.financialpoise.com

DISCLAIMER:

THE MATERIAL IN THIS PRESENTATION IS FOR INFORMATIONAL PURPOSES ONLY. IT SHOULD NOT

BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE

WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.


http://www.financialpoise.com/

about this webinar


Unclear and unpersuasive legal writing often comes from

undeveloped analysis and undisciplined organization. This

webinar explores best practices for structuring and organizing

briefs, including how to most effectively frame arguments, use

authority and find a winning theme. It also takes a fresh look at

an old law school war horse: I(ssue) R(ule) (A)nalysis

C(onclusion) – one of the few rules in life from which there’s

virtually never cause to deviate.

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about this series


Especially in federal district court, pre-trial litigation occurs almost entirely “on the papers,”

with few, if any, oral arguments or courtroom presentations. If litigators want a claim to

survive or be dismissed, discovery to be permitted or denied, or evidence to be admitted or

barred, they must persuade the court in writing. But mastering the craft of persuasive legal

writing can take decades and require shedding ingrained old habits and defying some

common expectations.

This webinar series features seasoned litigators, a former legal writing instructor, and a sitting

judge discussing the structure, substance, and style of effective brief-writing. This series will

help new and more experienced litigators sharpen a set of crucial skills that can, and should,

continue developing throughout their careers.

As with all Financial Poise webinars, each episode in the series is designed to be viewed

independently of the other episodes, and listeners will enhance their knowledge of this area

whether they attend one, some, or all of the programs.

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episodes in this series

EPISODE #1 Structure and Organization 9/21/16

EPISODE #2 Style 10/26/16

Dates above are premier dates; all webinars also available on demand


Let The Rules Do The Talking

Erasing Your Way to a More Effective Brief

Robert MichaelsRobinson Curley & Clayton, P.C.


Before Writing Anything (1)

• Understand exactly what you want to achieve

– If you’re the movant, what do you want the court to do?

– If you’re opposing, how, exactly, do you want to the court to dispose of the matter?

– Consider objective in light of whole case; what will happen if you lose?


Before Writing Anything (2)

• Complete all necessary research and become fluent in relevant law; this will guide structure

– (Almost) always: take path of least resistance

– Invoke the least-demanding standard

– Assume the lightest/easiest burden


Overview of Brief Structure

• Introduction

• Factual Background

• Argument

• Conclusion


Introduction (1)

• At least one paragraph; up to 2-3 pages in longer briefs

• Provide sufficient factual and procedural context for the court to dig in; remember, court has tons of cases and likely remembers nothing about yours

• Clearly state desired outcome



Introduction (2)

• If possible, establish primary theme, including, potentially, whether your desired outcome is clearly required by precedent/rule, serves judicial economy, or is otherwise fair and reasonable

• Create some expectation of what’s to come; can range from one “as explained in detail below” sentence to a bullet-point roadmap (but don’t overdo it; in longer briefs, table of contents serves this role)

Factual Background (1)

• Typically, chronological approach works best; use non-argumentative headings to separate events

• Cite the record or evidence you’re attaching; accuracy is paramount

• Freely quote key passages but don’t go overboard


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Factual Background (2)

• Slanted, but not silly; again, accuracy, and credibility, are essential

• On motions to dismiss or for judgment on the pleadings, factual background typically limited to summary of allegations and responses

• Documents referenced in pleadings can occasionally be attached and used in motion, but it risks converting motion into one for summary judgment

• Check local rules and cases to stay on right side of line

Argument: Structure (1)

• Logical, and, if possible, symmetrical (i.e., no “A” w/out at least a “B”, etc.), outline-based structure

• For longer briefs, table of contents should provide complete summary of argument

• For dispositive motions, typically organize by claim (I, II, etc.), element of claim (A, B, etc.), and arguments re: element (1, 2, etc. and smaller)


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• Don’t be a slave to opponent’s structure, but don’t ignore it either

- Opponent typically leads with point they consider strongest; if you delay addressing it, you may appear afraid

- Once you’re in the guts of any argument, you have more room to deviate from opponent’s structure

- If you need to delay reaching opponent’s lead argument(s), you can preview or give notice in introduction to brief or introduction to section


• For each major point, use IRA(C): Issue, Rule, Analysis and, if necessary, Conclusion

• Just about NO reason to deviate from this approach; it captures how reader understands and applies legal rules

• Following IRA(C) can be harder than it seems, especially when opponent’s argument requires extensive set-up/explanation; even then, however, it almost always helps to have rule stated up front


Irac: Issue

• Ideally, the “issue” will be stated in your argument heading, e.g., “Corpco Is Vicariously Liable for Agent’s Misconduct.”

• Keep headings to one line if possible

• Consider a sentence or two right under heading to fully set up the fight, especially if the argument has sub-parts e.g., “Corpco says it can’t be vicariously liable on Counts I-III. In fact, as explained below: (a) Corpco is vicariously liable under Illinois law; (b) RICO imposes no additional barriers to vicarious liability.”


Irac: Rule (1)

• Typically stated right below heading or right after sentence(s) that set up the fight

• Quote authority often; use as few of your own words as possible; mold case/statute language into your articulation of rule [using brackets] if needed

• At least one sentence as to why rule makes sense, again with quote from authority


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Irac: Rule (2)

• No clear rule to apply? Carefully synthesize one, based on authority

• Many arguments boil down to situating your facts on a continuum (in cases more like X, you’d win, in cases more like Y, you’d lose); articulate rule so it helps put your case on the right side of line

IRAC: Analysis (1)

• Accurately summarize opponent’s argument; understand what they mean, or ought to mean, not just what they say

– You can’t understand how silly your opponents’ arguments are unless and until you take them seriously

• Don’t be afraid to quote opponent’s language; ideally, find phrase(s) you can turn back against them

• Rebut ALL of opponent’s arguments and distinguish ALL of their authority


IRAC: Analysis (2)

• Concede NOTHING unless it’s absolutely essential; you never know what’s going to happen next

• Structure fallback arguments accordingly, e.g., “In any event, even if the Caremark standard applied (which it doesn’t), Plaintiffs state a claim.”

• Explain why your victory serves purpose of rule

• Careful w/absolutes: “no court has held” etc.

• Use footnotes wisely to separate primary from ancillary points


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Irac: Analysis (3)

• Closely apply authority, w/frequent factual comparison to your case (but w/out needless details from cited cases)

• Avoid citing any authority without either a short discussion of holding or parenthetical

• Use crisp case parentheticals that get to the heart of the fight; typically start with a present-tense verb, e.g., “sustaining RICO conspiracy claim against employer based on employee misconduct”

• Unless necessary, don’t rely on cases w/bad outcomes;

Conclusion

• Typically, keep it short; no need to rehash entire argument – “For the reasons above, Plaintiffs respectfully ask the Court to deny Defendants’ motions to dismiss.”

• Clearly reiterate exactly what you want the court to do


More About The Faculty


ROBERT MICHAELS

[email protected]

Rob is a shareholder at Robinson Curley & Clayton P.C.

Rob counsels and litigates for clients in a wide variety of complex commercial litigation matters,

including fraud, RICO, shareholder disputes, professional liability and other claims arising from

corporate looting and insolvencies, as well as a range of software and technology matters. Rob has

practiced in state and federal courts around the country and has successfully argued a number of

federal appeals.

Before joining RCC, Rob was a Staff Attorney and Project Director at the Environmental Law and

Policy Center of the Midwest, a Bigelow Teaching Fellow at the University of Chicago Law School, an

associate at Mayer Brown, and a law clerk for a federal district court judge.

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[email protected]



HONORABLE ALISON CONLON

[email protected]

Judge Alison Conlon was appointed by the Illinois Supreme Court on February 2, 2015. She presides in the Daley Center

hearing civil cases for damages under $30,000.00. While some people call these “small cases,” Judge Conlon understands and

respects that these cases are not “small” to those involved, nor to her.

Before becoming a judge, Judge Conlon was a partner in the law firm of Barnes & Thornburg, where she represented people,

businesses, cities and villages in commercial and tort litigation. Before that, she was an Assistant Corporation Counsel for the

City of Chicago and a law clerk to Judge Charles Kocoras.

Judge Conlon is and always has been a champion of fairness for all litigants and a strong protector of the rights of parties in court

who are not represented by lawyers. In addition to her regular judicial duties, she volunteers each week for the early morning

flexible-hour call, where unrepresented parties can bring their issues to court at 8:00 a.m. without missing a day of

work. Previously, as a lawyer, she had an active and award-winning pro bono practice where she represented for free people

who otherwise would not be able to afford a lawyer.

Judge Conlon is a third-generation Cook County resident. Armed with an excellent public school education, Judge Conlon was

accepted to and graduated from Yale University; received a Master’s Degree from Georgetown University; and earned her law

degree from Duke Law School.

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[email protected]



ADAM HIRSCH

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[email protected]

Adam is a partner at Robinson Curley & Clayton.

He represents a wide variety of clients, ranging from individuals to small business owners to large

corporations. He has a particular focus on business and investment disputes, and has experience litigating such

disputes in numerous state and federal courts. He has also represented business clients in arbitration and

mediation proceedings. Adam also represents employees in employment discrimination matters.

Before joining Robinson, Curley & Clayton, Adam was an associate at Jenner & Block in Chicago, where his

practice focused on complex business litigation.

Education

Harvard Law School, J.D.

University of Texas at Austin, B.A., Plan 2 Program with Highest Honors

Completed training sufficient to be certified as a qualified mediator in Cook County, Illinois

[email protected]



JOHN MARTIN

[email protected]

John Martin’s law practice is devoted to providing representation and counsel in complex business disputes, including contractual, fiduciary, and attorney professional

responsibility matters. John founded the Law Offices of John C. Martin (now MartinSirott LLC) in 2009 following thirteen years of practice with a large Chicago law firm

where, as an associate and partner in the firm’s general litigation practice, he handled multi-million dollar commercial litigation, including opposing multistate class and

shareholder litigation and the defense of claims against corporate and ERISA fiduciaries.

As principal of MartinSirott LLC, John represents clients ranging from individuals and small businesses to multinational corporations. He represents both plaintiffs and

defendants in a wide variety of commercial disputes, including claims arising out of distribution, lease, and lending relationships, as well as financial institutions in disputes

arising out of participation and other inter-bank agreements and in claims brought by defaulting borrowers and by trust beneficiaries.

John has also represented individual officers and directors of community banks in connection with FDIC inquiries and demands for payment of civil damages following bank

failures.

John’s practice also extends to attorney professional responsibility matters. He represents and advises both attorneys and clients in connection with professional

responsibility matters and in fee disputes. He is an active member of both the American Bar Association Section of Litigation’s Ethics and Professionalism Committee

(which he co-chaired from 2010-2013) and the Chicago Bar Association’s Professional Responsibility and Professional Fees Committees. He also served as a member of

the ABA Ethics 20/20’s Working Group on Alternative Litigation Finance. He has spoken and published extensively on issues relating to legal ethics and attorney

professional responsibilities, including recent presentations on attorney obligations relating to fees, advertising, and financing.

John is a graduate of the University of Chicago Law School, receiving his law degree with honors in 1994. He received his undergraduate degree summa cum laude from

Yale University in 1991. He is admitted to practice in Illinois as well as the U.S. Court of Appeals for the Seventh and Eighth Circuits, the U.S. District Courts for the

Northern and Central Districts of Illinois and the U.S. District Court for the Eastern District of Wisconsin. Prior to entering private practice, John clerked for the Honorable

Suzanne B. Conlon of the U.S. District Court for the Northern District of Illinois.

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[email protected]

Visit www.eisneramper.com

EisnerAmper. Let's Get Down to Business®

EisnerAmper LLP is a leading full-service advisory and accounting firm, and is among the largest in the United States. We provide audit, accounting, and tax services, as well as corporate finance, internal audit and risk management, litigation services, consulting, private business services, employee

benefit plan audits, forensic accounting, and other professional advisory services to a broad range of clients across many industries. We work with high net worth individuals, family offices, closely held businesses, start-ups, middle market and Fortune 500 companies. EisnerAmper is PCAOB-registered and provides services to more than 200 public companies and to thousands of entities spanning the hedge, private equity, brokerage and insurance

space in the financial services marketplace. As companies grow we help them reach their goals every step of the way.With offices in New York (NY), New Jersey (NJ), Pennsylvania (PA), California (CA), and the Cayman Islands, and as an independent member of Allinial

Global, EisnerAmper serves clients worldwide.

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Important Notes

• THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

• IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

• YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.
