Like the chicken and egg, it can sometimes be a thorny question. If you have a lot of “good” facts on your side, you might want to jump right into the Statement of Facts, putting the issues off until you reach the Argument section of your brief. Bur if you have any appellate experience, you know that appellate courts always require a statement of the issues presented right up front in the appellant’s brief (the appellee has an opportunity to include a counterstatement of issues presented). Even though rules rarely require it, you should include a statement of the legal issues involved up front in trial court briefs as well, in an introduction or preliminary statement that also includes just enough facts for the court to understand the issues.
This is, in essence, the advice Scalia and Garner give in Making Your Case: The Art of Persuading Judges. They continue with a warning that it behooves us all to heed:
But while your statement of the issue should come before a full statement of the facts, it must contain enough of the facts to make it informative. ‘Whether the appellant was in total breach of contract’ is a little help, but not much. Fill in the facts that narrow the issue to precisely what the court must decide: ‘The appellant delivered a load of stone two days late under a contract not providing that time was of the essence. Was the appellee entitled to reject the delivery and terminate the contract?’
Finally, don’t bother wasting the judge’s time with a boilerplate “Comes now plaintiff, ABC Corp. and submits this memorandum of law in support of its motion to dismiss defendant XYZ Corp.’s complaint seeking damages for breach of contract.” After all, most of that information should be in the document’s caption.
The New York State Library is the greatest little-known, completely free, legal research resource for New York lawyers.
New York State Library members have remote access to an extensive collection of online databases in various subjects, and can borrow any circulating materials from the library’s collection. The Library also provides assistance with legislative history research.
New York State Library members get access to the following legal databases (among others)
- Fastcase: A comprehensive national law library that includes searching, sorting, and visualization tools.
- More than 20,000 full-text online journals and newspapers.
Additionally, the librarians at the reference desk are very helpful.
Borrowing Hard-Copy Materials
To borrow hard-copy materials, find the material you want via the online catalog, then request it via phone, fax, e-mail or online. Books are mailed to you at no cost; you just pay the cost of return shipping. Journal articles can be copied (for a fee) and delivered by mail, fax or e-mail.
Legislative History Research Assistance
The New York State Library offers a helpful online tutorial about researching New York legislative history Additionally, many New York legislative history documents are available only in hard copy at the Library. You can ask a reference librarian to compile the legislative history documents and mail, e-mail or fax them to you.
Who can be a Member of the New York State Library?
Any lawyer who is both a New York resident and admitted in New York can become a registered borrower. A law firm with a New York office can also become a member upon submission of an application signed by a partner. When a firm is a member, anyone can be identified as the office contact (including paralegals).
The ability to electronically file federal court documents has been a boon for litigators. However, the vast majority of electronically-filed documents are “dumb” pdfs: the only benefit to reading ECF documents on screen rather than on paper is that ECF documents generated by MS Word, WordPerfect or a pdf creation program like Adobe Acrobat are searchable.
The Attorney Guide to Hyperlinking in the Federal Courts aims to change this situation. As the Guide explains,
[a]ttorneys can include links to cited law and CM/ECF filings in their briefs filed in CM/ECF, adding another level of persuasion to their writing. Hyperlinks in briefs and other court filings provide quick, easy, and pinpoint access to particular sections of a case, or to specific filings in the court’s record. The attorney can thereby highlight the precise issue presented, and the specific evidence and controlling or persuasive law the court should consider.
Hyperlinks in court filings are very beneficial for court chambers. Court submissions which include links to relevant case law and case filings are easy for chambers staff to review. The attorneys’ arguments can be immediately verified in the context of the relevant law. The judge or judicial clerk is able to read the text of the cited caselaw on one screen while reading the attorney’s brief on the other. And if a brief contains links to referenced exhibits, and even to specific pages within those exhibits, the judge or judicial clerk can access the relevant evidence without having to navigate through the CM/ECF record. Particularly when dealing with large and complex cases, links save chambers considerable time and effort. Links make it easy for the court to verify—and adopt—the positions taken by an advocate.
The guide provides clear, step-by-step instructions—with screenshots—explaining how to hyperlink to:
- prior CM/ECF filings
- attachments to a brief being filed in CM/ECF
- legal citations on Lexis, Westlaw and court websites
The Guide also explains how to ensure that hyperlinks remain “live” after a document is converted from MS Word or WordPerfect to pdf format.
The only fly in the hyperlinking ointment is the requirement that all filed documents must be in pdf/A format. Pdf/A is an International Standards Organization (ISO) standard document format. Pdf/A documents are self-contained and do not rely on or access information outside of the document itself to display the information contained within the document. Accordingly, the pdf document appears, and will continue to appear, identical to the document from which it was created, no matter where or when it is accessed. Although not all federal courts currently require documents to be filed in pdf/A format, pdf/A will eventually be required nationwide.
The most significant limitation of pdf/A for purposes of the current discussion is that some methods of pdf creation do not retain live masked hyperlinks. When a hyperlink is “masked,” the full URL of the referenced file is not visible to the user. For example, the link in the first paragraph of this article to the Guide is a masked hyperlink. The “unmasked” link to the same document is http://www.ned.uscourts.gov/internetDocs/cmecf/AttorneyGuide-Hyperlinking.pdf. As you can see, masked hyperlinks generally make a lot more sense to the reader. Additionally, they’re often shorter than unmasked links. Be sure to read How are hyperlinks in documents affected by the pdf/A requirement? at the PACER website for more information about which pdf creation methods retain masked hyperlinks.
The Guide was created by District of Nebraska judges and courthouse staff. While the Guide‘s instructions apply to filings in all federal courts, as the authors note, it’s important to check the local rules to determine which types of hyperlinks are allowed in documents filed in any particular court.