A Brief Writing Class held on Tuesday, 30th of January, 2018 by Bolaji Ogalu.
Reported by Director of Research II, Amirah Rufai.
It is important to note that “brief” and “memorial” do not mean the same thing. The primary difference between the two is that while a brief of argument is written with respect to local/national cases, a memorial is written to address an international court on international law related issues.
Another striking difference is the fact that footnotes are not required in briefs, as they are only required in international memorials. Similarly, appeal numbers are only required in briefs, they are not required in memorials.
Two things are very important in every brief. They are:
Note that the form your brief adopts is just as important as the substance it contains.
FORM/STRUCTURE OF A BRIEF
1. Cover Page: This is the first page of a brief. It has a definite structure, and must contain 5 pieces of information.
a. The name of the court to which the case is submitted
b. The division of the court
c. The appeal number
d. The names of both parties (Applicant and Respondent)
e. The party to which the brief belongs. For example, “Brief of Argument for the Appellant” or “Respondent Brief of Argument”
2. Table of Contents: This is usually contained on the next page of the brief. However, some national competitions may not require that you have a table of contents.
3. Index of Authorities: This is usually contained at the beginning of the brief for the purpose of clarity. Here, it is important that the authorities are structured in line with the hierarchy of sources. It therefore follows that a distinction should be made between the constitution and local legislations on one hand, and international treaties on the other. Similarly, a distinction should be made between national cases and international cases. Books and articles relied on should also be contained in the index of authorities. You may also choose to have a miscellaneous section for authorities that do not fit into any of the subheadings mentioned. Such authorities may include reports, directories, advisory opinions, resolutions, commentaries, just to mention but a few.
4. Summary of Facts: Note that this should be written from the perspective of the party that you represent, so as to tell the story in a way that favours your client. However, this does not mean you should omit an essential part, or infer into the facts. Just ensure that the case is seen through your eyes, and from your perspective as either the Appellant or Respondent.
5. Summary of issues: This is basically introducing the issues to be addressed.
6. Summary of arguments: Summarize the arguments to contain only important points. Avoid verbosity, and ensure that it does not exceed 2 pages.
7. Issues: You are advised to begin by addressing your best issue, as long as there is no strict procedure to this. For example, African Moot usually requires that parties begin by addressing the issues of jurisdiction and admissibility. However, if this is not the case, you are advised to have your best issue come first.
8. Prayers: This is perhaps the most important part of a brief.
“If you write all the arguments in the world, and you don’t have a prayer, you have merely written a prose”.
Therefore, it is essential that you know and state the reliefs that you want the court to grant you.
9. Conclusion: This is the last part of a Nigerian brief. In memorials, you don’t need a conclusion. However, in Nigeria, it is important that you sign and stamp the brief, in order for it to be recognized by the court. This fact has been reinforced in a plethora of cases. Also, note that you must sign with your first name and last name, not the name of your chamber or firm.
Your brief should also conform with the required citation model.
First, it is important that you take out time to understand the issues, before you begin to research.
Second, it is said that a good lawyer is not he who knows all the law, but he who knows where to find the law. For this reason, you are advised to begin with unguided research.
At this stage, nothing is unnecessary. Keep an open mind, download as many pdf files as you can get, and read as many articles as possible.
Do not close your mind to the numerous possibilities that exist in the issues. “Researching on Google is a skill”.
By reading articles, you will be exposed to legal concepts and issues that may form the bases of many interesting sub-arguments.
Third, the manner in which the arguments are to be structured is very similar to how exams are written. There is really no difference. Clarity however is very important.
Forth, court deference is very important. Begin every argument with a submission, and end with a submission. For example, “Appellant respectfully submits that…” or “The Respondent avers that…” Do not say things like “The only logical argument that can be obtained from this is…”, as this would imply that the judge will be illogical to not accept your position on an issue.
In addition, note that no case is binding under International Law. You may also distinguish between cases, as doing this effectively can earn you good points from the judges.