Vail Law: What goes into a legal brief can require a kind of anatomy lesson (column)
January 16, 2018
"We haven't got a prayer," I said. I pushed the legal papers toward her across the broad acreage of my desk.
My client looked at me, leaned forward in her chair. Disappointment etched like acid on her face. "You don't think so?" she asked.
"I know so."
It was the certainty of my answer that shook her. She ran her tongue around the borders of her lips then pursed them and held the papers in trembling hands.
“Well, a brief ain’t necessarily brief. Wasn’t it Shakespeare who observed that only a lawyer would draft a 100-page document
— presumably thoroughly footnoted and annotated
— and have the temerity to call it a brief? Anyway, a ‘brief’ is the formal way of presenting something to the court. It is a written document drawn up by a lawyer that deals with certain issues in the lawsuit, cites relevant points of law and makes an argument in favor of a particular proposition.”
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"But don't worry," I said. "We'll put it in before we let it fly."
I could see that I had lost her. "The 'prayer,'" I said emphatically. "Don't worry. We'll add it." Her befuddled look told me that it was time for a legal anatomy lesson.
"The prayer," I said, "is what you're asking for. It's what you're asking the court to do." I leaned on my elbows. "A legal brief is made up of parts. The 'prayer' is the part at the very end, the part that contains the specific request for judgment, damages or other relief that you're asking the court to award." I screwed myself up taller. "For example, a typical prayer may go something like this; 'The plaintiff prays for: 1) special damages in the sum of $75,000; 2) general damages according to proof at trial; 3) attorney's fees associated with this action; 4) costs of suit; and 5) such other and further relief as the court shall deem proper.'"
She said, "It's what we want, what we want the court to award us?"
"Exactly. A prayer lets the judge know what is sought and establishes the basis of a judgment."
"So what you just handed me doesn't have a prayer yet, but we'll add it before we file it?"
"Bingo!" We were on the same wavelength now. "You see," I went on, law is a very stylized affair. There are certain ways and methods of doing things that reach back to the moldy old law of Mother England."
Then there's the pleading
"The way you draft a brief or pleading—if not exactly set in concrete—it's expected in a certain form."
Nodding, I said, "A 'pleading' — sounds like you're down on your knees, doesn't it? — is the formal way of asking the court for relief. And 'relief' is want you want. A pleading is the formal written presentation of claims and defenses by the parties to a lawsuit. The pleadings are the specific papers by which the allegations of the parties to a lawsuit are presented in proper form; specifically the complaint of a plaintiff and the answer of a defendant plus any additional responses to those papers that are authorized by law."
"And a brief?"
I smiled. "Well, a brief ain't necessarily brief. Wasn't it Shakespeare who observed that only a lawyer would draft a 100-page document — presumably thoroughly footnoted and annotated — and have the temerity to call it a brief? Anyway, a 'brief' is the formal way of presenting something to the court. It is a written document drawn up by a lawyer that deals with certain issues in the lawsuit, cites relevant points of law and makes an argument in favor of a particular proposition. It is a written instrument meant to persuade the court to take certain action or look at a matter in controversy in the suit through a particular lens. You see," I went on, "law is all about arguments, about trying to find the right fit, the right answer. As old and stale as law may be, it is also surprisingly adroit and flexible. It evolves."
"And the formalities?"
"Pleadings consist of a statement of the parties and the basis for jurisdiction and venue, general allegations, various legal claims and the legal theories under which they fall, and a prayer for relief. Sometimes they may also include a verification or a sworn statement that the facts alleged are earnestly believed to be true. If a jury trial is sought, then it may be requested in the initial pleadings. Briefs consist of factual statements regarding particular issues at stake in the litigation and articulate the legal arguments in support of the proposition, the conclusions to be drawn and a prayer to the court to take a certain action. It is all," I said, "very structured, drafted in a form with which the Court is familiar and expecting to see."
"So when you say we don't have a prayer?"
"It's just a draft," I assured her. "Our starting point — between you and me — for our discussion."
She smiled, on board now, with the direction this was heading.
"We'll add it in before we launch."
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.