Trial Preparation: The Trial Brief
By Robert A. Zielke
Preparation is the undisputed cornerstone of the highly successful trial
lawyer. Likewise, the Trial Brief is the foundation for preparing for trial.
It involves the art of setting the stage to present your case and to convince
the judge that your beliefs about the case are the true reality. Just as Plato
discussed in The Republic, the Trial Brief will take the shadows
projected on the cave wall as will be presented at trial and will clarify
the shadows so that the reality of your own case becomes the self-evident outcome.
Time spent preparing the Trial Brief will further organize the case, prepare
the lawyer, and allow the lawyer to develop that special quality of care
that can be a powerful tool of persuasion.
A. Purposes of Preparing the Trial Brief
The key purpose of the Trial Brief is to convince the judge prior to the
trial starting that your interpretation of the case is the correct and just
position - in other words, developing the stage set. The Trial Brief will attain
this goal through the principals of education, organization of the overall case,
amplification of key points, and specification of the ending.
Educating the judge regarding the facts of the case and your position is
a paramount purpose. A well-drafted Trial Brief will set your case apart from
the multitude of other matters the judge is currently handling. By educating
the judge as to the factual basis and your position, you will allow the judge
to see the case in context. This might even have the effect of allowing the
judge to see your case as the fantastic and unusual, instead of the mundane.
The Trial Brief must persuade the judge that your version of the facts are
the true facts which fully support a plaintiffs verdict. The trial lawyer
must remember that persuasion is simply helping the judge to convince herself
or himself to believe as you do about the case. Spend the time and preparation
developing and presenting the facts in an exciting and clearly-written manner.
The Trial Brief must show the judge that your position is mandated by the
law. This is done by supporting your interpretation of fact and positions with
relevant and cited law. This is accomplished by cite checking relevant case
law and statutes where the holding is cited. It is often best to avoid repeating
the facts or circumstances of any cited case so that your theme and position
remains at the forefront of thought in the readers mind. Limit factual
or circumstantial discussions of case law to those unique or highly-contested
areas which will need to be argued. The trial lawyer can often cite to these
areas within the Trial Brief, and then save the circumstantial and factual arguments
for a Legal Brief and Argument, presented often as Motions in Limine. By adopting
this strategy, the trial lawyer maintains the purpose of the Trial Brief, by
showing that his or her case is mandated by law.
The Trial Brief has a purpose of providing the judge insight into the plaintiffs
injuries. This purpose of the Trial Brief is met by careful discussion of the
injuries that the plaintiff incurred due to the negligence of the defendant
driver. This is often best accomplished first by discussing the specific injuries
that the plaintiff suffered. One technique is to describe in non-medical terms
the injury, followed by supporting diagnosis. Establishing the injuries suffered
by the plaintiff then sets the stage for allowing the judge to form opinions
The Trial Brief should educate the judge as to the damages the plaintiff
will be seeking. Support the damages you are seeking with citation to relevant
case law, just as the trial lawyer does for the legal arguments and positions
that the trial lawyer is presenting. One technique is to carefully review
Washington Pattern Jury Instructions (WPI) regarding damages prior
to drafting this portion of the Trial Brief. By referring to the WPI section
on damages, one could make sure that they are covering most of the damages that
will be recoverable in the particular case. The WPI will also direct you to
specific case law which can be updated through legal research.
The Trial Brief will then establish a damages overview, showing how the injuries
have harmed the plaintiff. This section is not merely an outline of the special
damages. One technique is to describe the damages in an overview, setting forth
how the plaintiff has been impacted in enjoying their reasonable pleasures of
life. All injuries and damages can then be discussed under this umbrella: deprivation
of reasonable pleasures. Look for new and exciting ways to present the dry data
of special damages.
A carefully drafted damages overview can convince the judge that the plaintiff
has been harmed and is deserving of monetary compensation - the justice of awarding
dollar damages. Or stated another way, that it is great injustice not to award
the plaintiff compensatory damages for the ordeal through which they have travelled,
often at no fault of their own.
The Trial Brief must present the principle of credibility. The Trial Brief
must show that the case and that you, the trial lawyer, are both credible. Credibility
in discussing strengths, position, and potential weaknesses, allows the judge
to begin to rely upon you. This reliance on credibility can positively effect
the establishment of key facts within the case and the key positions. Credibility
is a central factor which often has powerful effects, allowing the judge to
persuade himself or herself to believe as you do about the case.
The Trial Brief must deal with the contentions, allegations, and arguments
of ones opponent or opponents. To attain this purpose, the Trial Brief
points out the fallacies of the defendants allegations and the weaknesses
of facts or contentions that will be presented. This section of the Trial Brief
allows the trial lawyer to further convince the judge to believe as the trial
lawyer does in the case.
Finally, the overall Trial Brief has the purpose of allowing a judge to see
and understand your witnesses, your arguments, and your evidence in
context of the entire case. A complete context of understanding becomes
important when arguments arise as to the admissibility of testimony or evidence.
Understanding the full contextual basis of the case allows the judge to see
the relevance and importance of the evidence and/or testimony. Without a Trial
Brief, the judge might be in a similar position as the jury; that is, only being
able to see the case in the disjointed fashion as the jury hears it. Failure
to present the contextual Trial Brief is like presenting your case to the jury
without an opening statement which provides the contextual framework for understanding
B. A Checklist Can Be Established for the Steps in Preparing, Writing, and
Editing the Trial Brief.
Using a checklist for the development and writing of a Trial Brief assists
the trial lawyer in following a cogent course to the final product. Appended
as Exhibit A is a simple
checklist for the development and writing of the Trial Brief.
The first step is to consider audience. Your Trial Brief will be read by
two different audiences. The primary audience is the judge that will preside
over the case. Assume that the judge has no knowledge or understanding of the
case, even if the judge has made previous rulings throughout the discovery phase.
Remember that your knowledge of the case comes from confidential discussions
with your client, discovery depositions, witness interviews, medical records,
etcetera, all of which have been acquired over a substantial length of time.
The judge does not have the time or resources to become as familiar with the
case as the trial lawyer. Next, consider the judges personality, idiosyncrasies,
and background. Talk to other lawyers who have tried cases before the particular
judge, and look at the prior cases tried by the judge as you develop the Trial
Brief. This again is simply considering the audience.
The secondary audience to consider is the defense counsel. By considering
the defense counsel as an audience, you can utilize this audience knowledge
in an attempt to devastate and demoralize the opponent. In considering this
audience, develop the Trial Brief in such a way as to create doubt in the defendants
facts and positions.
One method of analyzing audience is to list out factors known to the trial
lawyer regarding the judge and opposing counsel. With this list of information,
specific points or analogies can be developed which are powerful in allowing
the judge and/or opposing counsel to convince themselves to believe as you do
about the case.
Review the materials and evidence. Trial lawyers should gather and review
the discovery materials gained in the case, read depositions, and otherwise
immerse oneself in the factual basis of the case. This is a good time to highlight
and record discrepancies within the evidentiary framework of the specific matter.
Deposition outlines and cross-reference charts are extremely helpful. Another
method is to begin assembly of the trial notebook. This organization review
of the materials as being placed in the trial notebook can provide an adequate
review of materials.
Analysis of facts and positions is performed prior to the writing of the
Trial Brief. Even though analysis is continually occurring during the review
of materials, once the materials have been reviewed, spend extra time thinking
and analyzing the key points and contentions in the case. This is often the
beginning outline for the Trial Brief.
Develop one theme for the case after the materials have been reviewed and
a complete analysis has been performed. Most trial lawyers consciously or subconsciously
develop a theme of the case beginning as early as the initial interview of the
client. Consider the various themes that have been developed throughout the
case, but wait to pick and commit to your final theme until a complete analysis
of all materials has occurred. This is often just a simple check that the theme
developed earlier remains credible, relevant, and persuasive. As your develop
your theme, recall classical music. Classical music is often written using one
theme, even though there are sub-parts within the particular piece, the one
theme remains true throughout the piece.
Create a Trial Brief outline for your facts, points, and authorities, using
as a model, a standard Trial Brief format. Do not be afraid to add new headings
or present materials which are not normally presented in a Trial Brief. The
purpose of the Trial Brief is not to present a legalistic and robotic analysis
of your case. Consider the purposes of the Trial Brief as discussed above, for
developing new headings.
Once the Trial Brief outline is completed, write, edit, and re-edit your
Trial Brief prior to presenting it to the judge and opposing counsel. It goes
without saying, that the language used in the Trial Brief should be concise
and simple language. This language should paint a memorable picture of the case
in which your readers relive the collision as they read your brief.
The purposes of the Trial Brief is to educate and persuade the judge and
the opposing counsel that the facts and supporting law mandate the specific
outcome of a plaintiffs verdict with an award of just damages. These
purposes can be met through careful analysis and clear drafting. Consider your
audience as you complete your Trial Brief and remember that you are helping
the judge, as well as opposing counsel, to convince themselves to believe as
you do about the case. Set the stage with the Trial Brief for a successful and
just plaintiffs trial and verdict.
Zielke, WSTLA Automobile Accident Litigation Deskbook, Chapter 12(C),
at 438-81 - December 2000