USER GUIDE (page 8)

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I. APPLICATIONS

Practicing lawyers—use the toolkit to prepare briefs, opinions, letters to counsel, internal memorandums, and other documents.

Research Lawyers—use the toolkit to help your lawyer–clients write submissions for court (including trial briefs, appellate briefs, and skeleton arguments).

Students—use the toolkit to answer problem-based exam questions and moot court questions.

Teachers—get ideas for teaching ‘real-world’ legal problem-solving.

All users—tailor the end document to your particular audience and purpose

Win More Cases: The Lawyer’s Toolkit provides a step-by-step model for solving legal problems persuasively in writing. Many ideas about persuasive writing can apply to work inside and outside the litigation context, including writing letters to opposing counsel and negotiating settlements. But, to keep the toolkit manageable, the toolkit assumes you want to persuade a particular kind of audience: a judge or panel of judges (not a jury, an opposing lawyer, or some other kind of audience). Specifically, we have modeled the toolkit on cases that go to trial or appeal, especially civil cases.⁴⁴ In this situation, you will typically use the toolkit to draft a persuasive written argument, such as a submission or a brief.⁴⁵

⁴⁴ Even though most cases do not get to court.

⁴⁵ By ‘submission’ or ‘brief’, we mean the document that a lawyer presents to court arguing why their client should win. The plaintiff or appellant serves their brief on the other side before oral argument, and the defendant or respondent then serves their answering brief on the plaintiff or appellate. Sometimes, the plaintiff or appellant serves a reply brief (Delmar Karlen, Appellate Courts in the United States and England (1963) 149). Australians say ‘submissions’ and Americans say ‘briefs’ (more specifically, ‘trial briefs’ and ‘appellate briefs’). In England and Wales, ‘briefs’ refer to the written instructions from a solicitor to a barrister. So, rather than ‘briefs’, English lawyers refer to ‘skeleton arguments’, ‘outline submissions’, and ‘written submissions’. These terms describe the same thing in all UK courts other than the House of Lords. The House of Lords uses a specific document called the ‘appellant’s case’ or the ‘respondent’s case’, which performs the same function as a skeleton argument in the lower courts. But the House of Lords version tends to have more detail than skeleton arguments in the lower courts and they must cross-reference the various bundles before the House.