| 1. | Remind readers of the applicable legal rule, so that they remember what your client needs to prove to clear the relevant legal hurdle; this reminder is especially important when the legal rule is complicated. |
| 2. | Remind readers of the pertinent details from your client’s dispute — the background facts (with citations to the record) — to show that your case resembles in meaningful ways the favorable cases that govern the court’s decision (or to show that the cases are distinguishable). Do not assume that judges will recall every fact that they read earlier in the brief. By page 40, few judges will recall a detail that appeared on page 3. Try, however, to avoid being repetitive; this chapter offers some tips on how to revisit the same facts without repeating them. |
| 3. | Use procedural details to advance your argument. Top lawyers are astoundingly creative at using record materials to show that an adversary failed to plead adequate facts to state a claim, contradicted itself, waived an argument, failed to record an objection to an evidentiary ruling, or stipulated a fact. All sorts of strategic advantages await the party that has a superior command of the case’s procedural history. |
| 4. | Look for opportunities to point out that the other side has failed to present evidence; the absence of facts can be extremely persuasive. |
| 5. | Search for extrinsic facts to support your position, such as government reports, articles, surveys, industry manuals, an adversary’s public statements or filings, and so on. Just be sure that you either get those materials into the case’s record or that your judge can take judicial notice of them. |
| 6. | Don’t be afraid to use multimedia tools — photographs, charts and graphs, videos, and the like — to establish or clarify a critical point. |