14.4.1 DIVIDING UP THE WORK
Because research and writing are parts of the analytical process necessary to fully understand the issues in a case, the people doing the arguing will be better prepared if they participate in the writing process.
No less an authority than the late Chief Justice Rehnquist has noted the importance of the oral advocate’s participation in the drafting of the brief:The questions you get in an oral argument are often ones that are not squarely covered in the brief — indeed that is probably the reason for the question from the bench. So an advocate who has not gone beneath the surface of the brief to understand how its parts fit together into a coherent argument will be at a considerable disadvantage. Even an advocate who has all but memorized the brief will be at this kind of disadvantage, if [he or she] has done no more than memorize it.2
Thus, if you are the one who conducted research, chose some cases to include in your argument and rejected others, and hammered out the analysis, you will be much better able to understand and respond to the questions from the bench. If you must argue an issue that you did not brief, try to read more than the cases that are cited in the brief. Get to know the area of the law thoroughly, so you can explain why certain authorities are relevant or irrelevant.
There is no one best way for two or three people to collaborate on writing a brief. Because revising and polishing should be team efforts, the first decision to be made is how to complete the first draft. Some teams divide up the two major issues — giving two of the team members one issue each, and then having the third member handle the “extras” such as the statement of the case, the summary of the argument, the table of contents, and other format requirements. If one of the two issues is much more challenging than the other, however, you may wish to divide that issue between two people, have the third person handle the second issue, and collaborate on the extras.
The most demanding method, and perhaps the most effective, would be to have all three team members conduct separate initial research on both issues with a short deadline.
At that time, the team could meet and discuss the issues. Since three heads are better than one, this method would make best use of the intellectual strengths of all three team members. After the meeting, the team members could decide how best to divide up the continued research and the drafting of the arguments, and each writer would have the benefit of input from the other team member(s).Even at this early stage of the writing process, it is important that you have a specific understanding of length and typeface requirements. For example, it wastes time to draft in Times Roman font if your final draft must be in Courier font. Similarly, if your competition requires that your citations follow a particular citation format, you should make sure that all of the citations are in that format from the very beginning. Find out the specific requirements of your competition, and write with those in mind from the start. Recording necessary citation information as you take your notes, and observing length limitations from early in your writing process, will help to prevent last-minute editing crises.
Completing multiple drafts guarantees a higher quality product. Whatever method is used to divide up the work, it is important to decide how many pre-final drafts you will complete and to set a date certain for each draft to be completed. Even if your faculty advisor cannot critique your brief before it is filed, he or she can require you to turn in drafts at certain times during the time allotted for writing. Decide how and when you are going to work together on critiquing the drafts.