Here’s a bit of feedback from one who reads briefs for a living. Before you begin writing, take a moment and reflect on the purpose of your brief. Important threshold questions might include the following:
– Who is my audience?
– What does my audience need?
– How do I best communicate with my audience?
– What do I hope to accomplish with my brief?
The answers to these questions can make a big difference on what your brief looks like.
Let’s take a look at the first question: Who is my audience?
There are four possible answers.
1. The Mediator
2. Opposing counsel
3. The Client
4. Yourself
The Mediator
If your primary intended audience is your mediator, then take a moment to analyze what your mediator needs in order to do their job. A highly effective mediator will take the information from your brief and use it in the other room. If your brief describes facts that advance your client’s claims or defenses, then your mediator should discuss those facts with the other side. Include background facts in your brief only to the extent your mediator needs them in order to understand the flow of important events. Stay away from facts that serve no meaningful purpose, but don’t skimp on key facts. You want to lay out key facts with enough clarity and detail that your mediator can persuasively discuss them with the other side. If the other side is unaware of your key facts or if they dispute those facts, consider including persuasive evidence as exhibits that your mediator can use in the other room. An effective brief describes the key facts and evidence and doesn’t dilute them with information that advances neither a claim nor a defense. Facts are powerful. They build sympathy. They invoke compassion. They highlight equity. Mediators are people too. Facts, briefs and trials all focus on one primary thing: to persuade.
In a mediation, the first person you want to persuade is your mediator. If you convince your mediator early on that your client has been terribly wronged or that your client is blameless you will have cleared the first hurdle toward reaching a successful resolution. If your mediator is convinced, they’ll discuss your facts with the other side and invite their response. Marshall the facts in your brief in a way that will persuade the reader that a judge or jury will want to side with your client. Begin your discussion of the facts with a discussion of to what the other side has done or hasn’t done and then describe the effects, results and consequences of the facts in such a way that it will be clear that the trier of fact will want to vote for your side. Before you begin discussing the law, evaluate your mediator’s needs. If your mediator works with cases like yours five days a week, you might not need to cite much law. But if you don’t know whether your mediator is highly conversant on the law in your case, avoid the temptation to skimp on your discussion of the law. I look up and read some of the cases and statutes cited in briefs when they involve key legal points. Reading cases and statutes help me discuss key legal points when I’m in the other room exploring the strong points of your case with opposing counsel. If you don’t provide your mediator with such citations then you may lose an important opportunity to have the mediator explore with opposing counsel key legal points which may be in your favor.
Opposing Counsel
A key audience for your brief is your opposing counsel. I’ve seen attorneys become convinced by their opponent’s brief (and the exhibits that accompany it). In addition to building their own case, opposing counsel must understand your case or they risk being blindsided at trial. Opposing counsel may never openly acknowledge that your brief has persuaded them as to the merit of your case, but I see it happen. A well-written brief with a clear statement of facts, a concise statement of the law and some dynamite exhibits is a powerful tool. This kind of brief not only has a significant effect on the opposing counsel and client, but also provides the mediator with important material they need in order to do their job effectively. Such a brief and exhibits can make a material difference on whether or not a case settles at mediation. Analyze your opponent’s case. Identify both the strong and the weak points and address them directly in your own brief. This will not only highlight the key issues for the mediator, but will also let opposing counsel see how your arguments and evidence will likely come across to a judge or jury at trial.
I sometimes get confidential briefs that aren’t shared with opposing counsel. This can be a missed opportunity. Even if opposing counsel knows your case well, share your brief. If you write a great brief and persuade your mediator as to the strength of your case but if you then don’t share it with opposing counsel, what can your mediator do? Your mediator needs to be able to discuss with your opponent all the facts and law that make your claims or your defenses so powerful. If there’s something you need to confidentially communicate to the mediator, prepare a short supplemental brief to be shared only with them.
The Client
Every mediation involves at least two sets of clients. Sometimes the needs of these clients determine the tone of the brief.
In some cases, clients are outraged, frustrated and angry. If they’ve been terribly wronged, then they want that expressed in the brief. Some clients almost insist that their attorney’s brief be aggressive. When this happens, the tone of the brief can be highly critical, accusatory and condemning of the opposing party. If your client insists on this then you may have to prepare such a brief. But words are powerful. They can cut to the quick. They can invoke anger and frustration with a very few keystrokes. Remember that the person you attack in your brief is the same person you are trying to convince. If that person is highly defensive or angry because you have attacked their character, their motives or their actions, the focus of the mediation may shift from the issues at hand to something far more volatile: pride or ego. When that shift happens it’s far more difficult to get people to hear reason. If the mediation becomes a stare- down about pride, control or respect, then other considerations such as money may take a back seat. Once that happens, it can be nearly impossible to settle until the focus returns to the
actual issues in the case.
Yourself
My father taught English at a major university for 39 years. He used to say that resumes, reports and other documents are “You on paper.” In other words, the written document represents the writer.
He was right. Briefs and other written documents speak volumes about the author. If the brief is full of typos, sentence fragments or incorrectly used words then it conveys a certain message about the author. If the brief is tightly written with a clear statement of facts and a concise statement of law, a different message is conveyed. At a mediation everybody sizes up everybody else – client, attorney, and mediator. Your written work absolutely conveys a message to the other side about who you are, how you do business and how you are likely to try the case.
Attorneys take their work seriously. And they often have deep feelings about their client’s situation. If an attorney feels their client has been disabused, wronged or disrespected, or if counsel on the other side appears to be stubborn, uncooperative, unyielding or aggressive then temperatures can rise. Sometimes litigation frustration escalates to a significant level. When it does, counsel may “take it out” on the opposing client or counsel in the brief. Use care when doing this. If you’re dealing with an impossible client or counsel on the other side, take three deep breaths before writing anything. Let cooler heads prevail. Analyze your audience before committing yourself to paper. If an aggressive brief will advance your client’s cause and make settlement more likely, then write one. But if an accusatory brief is more likely to spin things up and shift the focus of the mediation to ego or pride, forego the opportunity of speaking your mind or venting your own anger on paper and instead draft your brief as outlined above.
There are many considerations involved in preparing an effective brief; these are some of the major ones. Carefully analyze your audience before starting your brief and you’ll find yourself turning out written work product that moves your case closer to settlement rather than farther away.
Robert Jacobs is a neutral with Judicate West. He has litigated cases throughout California for more than 30 years. He serves as a mediator and arbitrator in Real Estate, Business, Construction, Personal Injury, Wrongful Death, Medical and Dental malpractice and Trust Litigation cases.