1 SOMEEXAMPLESARE“BAD” EXAMPLES
Do not presume that the principle illustrated in each example applies to the brief you are currently writing. First, the examples in the book are not meant to represent the current law on any subject.
They come from a variety of student briefs written over several years. Some of the cases cited in the examples are fictional. Second, some of the examples are “bad examples,” that is, they were adapted to show how not to do something. Unfortunately, some students, in a hurry to complete a project, will consult a textbook and imitate its examples slavishly, including “bad examples.” To try to avoid this problem, the bad examples are carefully labeled—with the words “bad example” and with a downward arrow —so that you will not mistake a bad example for a good example. Most, if not all, of the bad examples are paired with a good example to show how to address the problem illustrated in the bad example. These are labeled with the words “good example” and an upward arrow.The examples that are not paired are labeled with the words “example” and an arrow pointing to the example. Virtually all of these examples are good examples, but even these examples must not be followed unquestioningly. Just as the same law applies differently to different fact situations, the guidelines in this book may apply differently to briefs addressing different issues. For that reason, I have used examples from a variety of cases; no one case aptly illustrates every type of brief-writing problem. The majority of the examples in the text come from student briefs written for four Supreme Court cases: Minnesota v. Carter, 524 U.S. 975 (1998); Knowles v. Iowa, 525 U.S. 113 (1998); Miller v. Albright, 523 U.S. 420 (1998); and Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (argued as Bentsen v. Adolph Coors Co.). There are also scattered examples from student briefs written for Ohio v.
Robinette, 519 U.S. 33 (1996); City of Chicago v. Morales, 527 U.S. 41 (1999); Holloway v. United States, 526 U.S. 1 (1999); and City of Indianapolis v. Edmond, 531 U.S. 32 (2000). Many of the motion brief examples are based on a fictional case, Garrett v. Kirkby, in which the issue is whether a supervisor can be held individually liable under Title VII as an “employer” as that term is defined in 42 U.S.C. § 2000e(b).Even the good examples may not be perfect, but they represent good attempts by law students to write effectively. The sample briefs in Appendix C contain marginal notes that point out passages that are particularly effective, as well as passages that might be made even more effective if the writer had made certain decisions differently. Some marginal notes try to explain why certain peculiarities about the case may have led the writer to choose a certain writing or organizational technique. Thus, when you are deciding whether to imitate an example, you should first consider whether the example is effective; second, decide whether your case presents the same types of writing concerns as the case used in the example.