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14.3 CHOOSING WHICH SIDE TO BRIEF

If your school sends two teams to a particular competition, the rules usually dictate that one team must act as petitioner and one team must act as respondent. In that case, your choice of side will probably depend on a coin flip or some other arbitrary method.

If your school sends only one team, however, you may be allowed to choose which side of the case to brief. Because you will be arguing both sides of the case at the competition, make this decision based mainly on how it relates to the brief. If there is no deadline for your decision (other than the brief deadline), you may want to begin researching and writing based on your gut instinct, but allow yourself to change sides if you later decide that the other side would be better.

Do not agonize too much over this decision; you cannot control how the judges will react to each side of the case. If the judges think that one side is much easier than the other, they may consciously or unconsciously award more points to what they perceive to be the more challenging side. On the other hand, if the judges are not overly perceptive of the relative difficulties of the two sides, they may award more points to the briefs that seemed to make the better arguments. Thus, you should choose the side that you think will allow you to write the better brief. If you think you are writing the easier side, be careful. Do not fall into the trap of failing to adequately brief issues because they seem easy or obvious to you.

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Source: Beazley Mary Beth. A Practical Guide to Appellate Advocacy. Fifth Edition. — Wolters Kluwer Law,2018. — 475 p.. 2018
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