Professor Sarah Ricks
Rutgers Law School
Class 1 November 13
Additional Handout
Effective Brief Writing:
Four Key Concepts
One:
Two:
Three:
summarize before launching into detail
Four:
explicitly apply the law to the facts
an analytical structure that works - CREAC
make it easy for the court to grasp the logical structure & the relationship
between ideas
One: summarize before launching into detail


Tell the Reader where you are going
Courtesy to the Reader & self-discipline
Parts of briefs & e-mails that summarize what follows
Summary of Argument or introductory paragraph in a brief
Headings
Brief answer in an email or memo
Good example:
A prison guard is subjectively aware of a fact only when the guard is put on notice
of a specific threat to an inmate’s safety. Here, the concerns prisoner Peterson
voiced to Guard Doherty were not sufficient to alert Doherty to a specific threat
because Peterson left out vital information such as the reason for the threats from
other prisoners. Therefore, Guard Doherty was not aware of facts from which he
could infer any risk of harm to prisoner Peterson.
Different example of summarizing before launching into detail
In paragraphs that explain law, begin with the main idea



state the main idea or legal rule, slanted to favor your client
use cases as examples to prove that the law is what you say it is
avoid beginning paragraphs with case names
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good example
easy for Reader to grasp what paragraph will prove and why case is cited
Prison guards have a duty to protect prisoners from violence at the hands of other
prisoners.
A prisoner’s vague allegations of fear are not sufficient to put a prison guard on
notice of a specific risk to the prisoner’s safety.
Note the statement of law is slanted to favor the side the writer wants to win.
 Which side does the top example represent?
 Which side does the bottom example represent?
Two: CREAC is an analytic structure that works
C = Conclusion
R = Rule statement
E = Explanation that the law is what you say it is
A = Application of law to facts
C = Conclusion
CREAC structure works for briefs, memos, e-mails
Conclusion: a legal conclusion
Prison Guard Doherty was not indifferent to the risk of harm to Peterson.
Rule/Rule Explanation: statement of the legal rule(s) that govern the issue
plus proof that the law is what you claim it is
Rule: A guard is deliberately indifferent if he chooses to do nothing to prevent a
known risk of harm to an inmate. Rule Explanation: In Weiss, this Court held that
a guard deliberately disregarded a risk by taking absolutely no action to prevent
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Professor Sarah Ricks
Rutgers Law School
Class 1 November 13
Additional Handout
harm to an inmate. The guard, knowing that the inmate was at risk of attack by
other inmates, did not allow the inmate to attempt to transfer to a different unit
and took no affirmative steps to try to ensure the inmate’s safety. By just walking
away, the guard acted unreasonably.
Application-Analysis: explicitly applying the law to the facts
Announce what rule the paragraph will apply to facts: Here, Guard Doherty
acted reasonably in response to a reported threat by taking prisoner Peterson to fill
out a transfer request. Compare facts from court decisions to your client’s facts:
Unlike the guard in Weiss who acted unreasonably by refusing to allow an inmate
to attempt to transfer units, Guard Doherty escorted Peterson to the central office
to fill out a transfer request.
Conclusion:
reiterate the legal conclusion on that issue before moving to the
next issue
Guard Doherty therefore was not deliberately indifferent to the risk of harm but
responded reasonably to Peterson’s concerns.
Three:
make it easy for the court to grasp the logical
structure and relationship between ideas
o use headings that show how arguments relate to each other
I.
II.
Prisoner Peterson Failed To Show that the Risk of Harm Was Obvious
Because Peterson Himself Was Surprised By the Attack
Even if the Risk of Harm, Was Obvious, Doherty Did Not Disregard that
Risk Because he Responded Reasonably by Escorting Peterson to Request
a Transfer
o
use a table of contents
o
use transitions between paragraphs to show how ideas relate
Even if Mr. Peterson had not reported any threats, Guard Doherty still
would be aware of the risk of harm to Mr. Peterson based on Mr.
Peterson’s gang tattoo.
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o use transitions between sentences to show how ideas relate
o words that signal relationships between ideas
Alternative:
Addition:
Sequence:
Comparison:
Contrast:
even if, even though, in the alternative, regardless, however
in addition, furthermore, moreover, also
first, second, next, finally
both, similarly, in comparison, likewise
but, instead, despite, by contrast, nevertheless, notwithstanding,
however, still, even though
Illustration: for example, in particular, specifically, to illustrate
Result:
accordingly, consequently, since, because, therefore
o
use (but don’t overuse) bullets and numbered lists



Enumeration, like this: The important factors are (1) the audience, (2) the
document length, and (3) the document’s purpose;
Tabulation, like the bulleted items you are reading now;
Enumeration and tabulation together, like this: The important factors are –
1. the audience,
2. the document length, and
3. the document’s purpose.1
Four: explicitly apply the law to your facts
o repeat language of legal test when applying law to facts
The risk of harm to Mr. Peterson was obvious because both his inked-out
gang tattoo and the attacker’s crude gang tattoo were plainly visible.
A jury could find that the risk of harm posed by Peterson’s inked-out gang
tattoo was obvious to Guard Doherty because he worked at the prison for 14
years and has attended training on prison gang violence every year.
1
Wayne Schiess, The Five Principles of Legal Writing, 49 Prac. Law. 11, 16 (2003).
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Professor Sarah Ricks
Rutgers Law School
Class 1 November 13
Additional Handout
o make analogies between your facts and facts of decided cases explicit and easy
for Reader to grasp
Fact in a decided case = fact in the pending case
because the two situations share a trait or have something in
common
Attack in Fisher = attack here
because shared characteristic: both attacks surprised victim and
therefore surprised guard
Like Fisher, where this Court held the guard must have been surprised by the
attack because the inmate admitted to being surprised by the attack, here
Guard Doherty must have been surprised by the attack since Peterson
admitted the attack came “out of nowhere.”
o make distinctions between your facts and facts of decided cases explicit and
easy for Reader to grasp
Fact in a precedent case ≠ fact in the pending case
because the two situations are different
prisoner in Dale ≠ prisoner here
because prisoner here told guard about threats
Unlike the prisoner in Dale who refused to give the officers any
information, Mr. Peterson explicitly told Guard Doherty that he had
received death threats from the Latin Kings gang.
risk to prisoner in Lewis ≠ risk to prisoner here
b/c risk here is more obvious since prison uniform shows gang tattoo
Unlike in Lewis, where the risk was not obvious because gang members
in the prison concealed their gang affiliations, here the sleeveless prison
uniforms allowed gang tattoos to be clearly visible to all prisoners and
guards.
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Structures to help make analogies explicit and obvious

Like X fact in Smith, here Y fact shares Z trait…
Like Fisher, where the prisoner did not protest his placement on the wall because
he was unaware his attacker was next to him, here prisoner Peterson did not
protest his placement in a cell with the attacker because he did not realize that the
attacker was a member of the Latin Kings prison gang.




Just as in Smith, here too Y fact….
Smith is analogous to this case because in both Y fact…
X fact in this case is akin to Y fact in Smith, since both share Z trait….
This case is similar to Smith and the court should reach the same result
because in both cases Y fact…
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Professor Sarah Ricks
Rutgers Law School
Class 1 November 13
Additional Handout
Key fact from precedent
case
Key fact from your case
How will you analogize?
Put yourself in your
opponent’s shoes – how
will your opponent
distinguish this fact?
Draft a rule sentence,
slanted to favor drawing
the analogy
Draft a rule sentence,
slanted to favor drawing
the distinction
As your brief teaches law to the court, try to foreshadow how you want the law to apply to the
facts by slanting legal rules (R) to favor your point of view.
The above chart can help you work backwards - from the analogies you want to draw between the
facts of decided cases and the facts of your case (A), to developing legal rules (R) that are slanted
to favor your view of the law. The chart on the next page can help you do the same for factual
distinctions.
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These charts can also help you to identify plausible counterarguments that your brief should
refute. A strong brief needs to not only argue your view but refute your opponent’s arguments.
To do so, you need to recognize the arguments your opponent is likely to make.
Key fact from precedent Key fact from your case How will you distinguish?
Put yourself in your
case
opponent’s shoes – how
will your opponent
analogize this fact?
Draft a rule sentence,
slanted to favor drawing
the distinction
Draft a rule sentence,
slanted to favor drawing
the analogy
Chart created by Alison Anderson, Rutgers School of Law- Camden Class of 2010. Ms.
Anderson is an attorney for the Justice Department in Washington D.C. She served as a
law clerk for the Ninth Circuit in Las Vegas (2011-12) and for the U.S. District Court in
Philadelphia (2010-11).
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