Writing Judicial Briefs

Attorneys often prepare two types of judicial briefs. One is the written summary of facts, issues, and arguments that an attorney prepares for litigation purposes. Known as a trial brief (or appellate brief for a case on appeal), the attorney often must provide a copy of this document to the judge (or justice). The second type is simply the summary of a previously decided and published judicial decision. The following discussion focuses on this latter type of judicial brief.

Law students develop the ability to brief judicial decisions as a way to prepare for class. Such summaries are very useful when discussing a case or following the arguments of fellow classmates or the professor. However, the art of briefing is a worthwhile skill with value beyond academia. In particular, the ability to clearly and efficiently brief a judicial decision can be a means of:

1.   Preparing for a discussion with your supervisor, a client, or an IRS agent and

2.   Understanding, analyzing, and remembering an important judicial decision.

A quality brief is often the result of carefully reading a judicial decision two or more times (i.e., study and analysis is required). One or two cursory readings generally provide an insufficient understanding of a decisionís intricacies to write a high-quality brief; accordingly, the resulting brief often is not very useful.

A good judicial brief includes some preliminary information such as the decisionís citation, judicial history (if any), and judge or justice. A brief also contains the facts, issue and holding, and reasoning. Each of these parts are discussed in more detail below. Though the writer must compose several distinct parts, this activity is labeled “briefing” for a reasonóthe finished product should be brief! Even lengthy judicial decisions generally can be summarized on a single page.


Citation

The judicial decisionís citation may consist of only the most important reference, such as the cite to an official government reporter series, and the date of the opinionís issue. Thus, the cite to Lucas v. Earl might include only a reference to the government’s U.S. Supreme Court Reports:

Citation:

Lucas v. Earl, 281 US 111 (1930).

At the other extreme, an exhaustive citation consists of all parallel references (including lower court decisions). In other words, it includes cites to all sources where a copy of the judicial case can be obtained. Using the prior example, the exhaustive citation is:

Citation:

Lucas v. Earl, 281 US 111 (1930), 74 L.Ed. 731, 50 S.Ct. 241, 2 USTC ∂496, 8 AFTR 10287; revíg CA-9, 30 F.2d 898 (1929), 7 AFTR 8508; revíg 10 BTA 723 (1928).

When multiple cites are given, official government sources are listed first. Cites to West reporters (e.g., Supreme Court Reporter and Federal Reporter 2d) generally precede citations to RIA (or P-H) and CCH reporters (i.e., American Federal Tax Reports and United States Tax Cases). Miscellaneous citations usually come last. The date should follow the first citation of each decision (i.e., at each judicial level).

An exhaustive citation may be appropriate when the briefís preparer is writing the summary for someone else. The briefís reader may not have access to the official reporter series. In this situation, listing parallel citations allows the reader to locate the case in a variety of reporter series. As a practical matter, including only one or two parallel citations is often sufficient.


History and Judge (or Justice)

The judicial history immediately follows the citation and is necessary only for appealed cases. The judicial history informs the reader, at a glance, about the caseís outcome at each judicial level (i.e., who won). Sometimes the judicial history can be obtained from the text of the highest courtís opinion (e.g., the Supreme Courtís decision); otherwise, a citator or other resource must be consulted to obtain the judicial history. For Lucas v. Earl, the history can be written as follows:

History:

S.Ct. and the BTA for the govít; CA-9 for the taxpayer.

The last name of the judge (for lower court decisions) or justice (for Supreme Court decisions) writing the briefed opinion should appear following the judicial history.


Facts

All potentially relevant facts should be clearly communicated. Sufficient facts to understand the circumstances must be included without including unnecessary facts. In other words, the facts should be neither too concise nor verbose. This portion of the brief certainly should include facts that the court explicitly stated were relevant in deciding the issues. However, other facts may be potentially relevant in a later setting and, when appropriate, should be included.

Which facts are potentially relevant and which should be omitted is often a matter of professional judgment. Tax novices and experts may differ in their opinions about the potential relevance of some facts. Concurring and dissenting opinions might suggest some potentially relevant facts that the majority opinion considered unimportant or otherwise failed to indicate were relevant. Similarly, earlier decisions of the case in the lower courts, especially if the case has been reversed on appeal, may suggest potentially relevant facts that should be mentioned in the brief. Exercise discretion in deciding whether the arguments in these other opinions have merit and, thus, whether the related facts are potentially relevant. In most cases, they should be omitted.

Facts should be conveyed in a concise, understandable manner. Avoid ambiguity and specifics as much as possible. Generally, dollar amounts, dates, names, detailed citations, and similar specifics should be omitted except where the omission results in unnecessary awkwardness. The facts should conclude with a short statement of both the taxpayerís and the governmentís arguments or positions, both of which should relate explicitly to a tax concept (e.g., deductibility).

To promote ease of understandability, the brief should not refer to opposing parties as petitioners, defendants, plaintiffs, respondents, appellants, or appellees. Attributing some statement to the “appellant” requires the reader to first recall which party appealed the case, an extra and unnecessary step of mental processing that does not foster readability. In contrast, attributing facts, arguments, and positions to either the “taxpayer” or the “government” is sufficient and clear.


Issue

Though judicial decisions often have two or more legal issues, most have only one central issue that is pertinent and, thus, prompts the writing of a brief. The legal issue should be presented in question form, answerable with a “yes” or “no.” Writing the issue to demand a yes or no response promotes clarity and focus. In contrast, open-ended issues often are less clear and sometimes ambiguous.

To the extent possible, issues should converge on a specific tax concept. Most issues deal with questions of gross income or deductibility. Other tax concepts with which issues may deal include basis, credits, and capital gain. Consider the following issue from A.P. Green Export Co. v. U.S. (Ct. Cl., 1960):

Issue 1 (Poor):

Where does title to the goods pass?

This issue provides insufficient detail. As written, the related holding could be expressed in numerous ways depending on the exact meaning of the question. In short, the issueís conciseness leads to ambiguity. Rewriting the question to demand a yes or no response is one way to narrow the focus to the precise issue.

The tax concept in the issue above is unclear also. A.P. Green Export involves the source of income rules, which are important in calculating the foreign tax credit under ß904. These rules divide income between U.S. and foreign sources. The following rewrite focuses on the “profitís source” and, thus, explicitly deals with this tax concept:

Issue 1 (Better):

When a sales contract states that title passes outside the U.S. but the shipping terms imply that title passes within the U.S., does the language of the sales contract control in determining the profitís source?

Issues should be stated so that they “stand alone.” That is, issues should be completely understandable without reference to the facts or other sections of the brief or judicial decision. Use of the definite article “the” indicates that the issue does not stand alone when it alludes to prior information.

Read the original, shorter version of issue 1 (above) again. It does not stand alone. The reference to “the goods” apparently directs the reader to the briefís facts. If someone wishes to know the judicial decisionís precise issue, this question (without first knowing the facts) does not enlighten them much. At best, it communicates something about the topical area of the judicial decision.

Notwithstanding the demand for clarity and preciseness, a brief should not cram all facts into the issue. Only facts relevant to an understanding of the question before the court should be weaved into the briefís issue. Once again, neither verbosity nor ambiguity are desired. Just enough detail to clearly write a “stand alone” issue is needed. This fence-straddling skill improves with experience and practice.

Beginning the issue with “are” or “is” often leads to a clearer and more concise expression of the issue than beginning it with “may,” “can,” “does,” or “should.” The latter beginnings may lead to vague or ambiguous versions of the issue. Examine the following alternative statements of the judicial issue from Aiken Industries, Inc. (TC, 1971), acq.:

Issue 2 (Poor): Are the interest payments exempt from the withholding tax?
Issue 2 (Poor):
 
Should the taxpayer exempt the interest payments from withholding tax?
In the first version of issue 2 above, to which interest payments and which withholding tax is the writer referring? The issue does not stand alone since it cannot be precisely understood apart from separately reading the briefís facts. The extreme brevity leads to ambiguity. In the second version, the question can be interpreted as a moral or judgment issue rather than a legal one. Whether the taxpayer should do (or should not do) something may be a very different issue than the legal question of what the law requires. A legal brief, however, should focus on the latter. Rewriting issue 2 as follows leads to a clearer expression of the precise issue:

Issue 2 (Better):

Are interest payments exempt from the U.S. 30% withholding tax when paid to an entity established in a tax treaty country for no apparent purpose other than to escape taxation on the interest received?


Holding

As the issueís complement, the holding consists of two parts: (1) a “yes” or “no” conclusion to the briefís issue and (2) the rule of law the court establishes. The rule of law is a guidepost that courts use to decide future cases based on the legal concept of stare decisis (judicial tendency to follow prior decisions). Like the issue, it should “stand alone” and converge on a tax concept. In short, it is one sentence that clearly and concisely states the tax law the case created without reference to either the facts or the issue. Tax professionals can use rules of law to resolve issues arising in practice. A rule of law that does not stand alone may be difficult to apply to a clientís fact pattern. To extract the rule of law from a judicial decision, you must “reduce the puffy, cotton-candy language of the case opinion into a succinct nuggetÖ.” [Bruce D. Fisher, Introduction to the Legal System (West Publishing: St. Paul, 1977), p. 212]. In short, the holding tells you what was decided and provides a legal rule that can be applied in future cases.

The examples below relate to the same judicial decisions as issues 1 and 2 above. The holding in A.P. Green Export Co. v. U.S. (Ct. Cl., 1960) might be stated as follows:

Holding 1 (Poor):

The sales contract affects the source of the transactionís profit.

Note that the first part of the holding, namely the “yes” or “no” response, is missing. The purpose of the “yes” or “no” portion of the holding is to leave no doubt in the reviewerís mind about the courtís decision on the issue. When omitted, the holding may require more careful reading to be certain of the result. Suppose a brief has a well-written issue but a poorly-formulated rule of law. If the first word of the holding is “yes” or “no.” the reader will know the courtís decision even though the legal rule for future application may be unclear. The omission of “yes” or “no,” on the other hand, may obscure even the courtís decision.

The rule of law in the holding above is ambiguous; its application to future cases is unclear. For example, you might wonder how the sales contract affects the profitís source; it is unclear that title passage must be stated in the sales contract. Also, you might wonder whether shipping terms can affect a profitís source when title passage is clear. In fact, this was the issue in A.P. Green Export. The following statement of the holding clarifies the courtís decision:

Holding 1 (Better):

Yes, when a sales contract states where title passes, it controls the profitís source, and shipping terms are irrelevant.

Now, look at the holding below, which relates to the Aiken Industries issue presented earlier.

Holding 2 (Poor):

No, the interest payments are not exempt from withholding.

Note the definite article “the,” which modifies “interest payments.” This holding does not stand alone since the word “the” summons information from the facts or issue to identify the interest payments. Also, the rule of law is ambiguous. What type of withholding is this? Does the holding refer to a foreign withholding tax or a withholding procedure in the nature of a tax prepayment? Similarly, does the exemption at issue relate to a tax liability or a waiver of some prepayment requirement? These questions cannot be answered solely from the holding. Also, the holding above imposes no conditions on its application, suggesting that all interest payments are subject to withholding (with no exceptions).

The rule of law in the holding above cannot be reasonably applied to future cases. Thus, it should be reformulated. Examine the improved expression below:

Holding 2 (Better):

No, treaties exempt interest payments from the U.S. 30 percent withholding tax only if a person or entity in the treaty country “owns” the interest.

This holding includes a rule of law that is much easier to apply. Unless its recipient “owns” the interest income (i.e., the recipient is the beneficial owner rather than a conduit), the treaty exemption is inapplicable.


Reasoning

The reasoning gives the reader insight into how the court arrived at its decision. It is instructive in nature. Courts often back their holdings with several lines of reasoning, each of which should be summarized in this section. Unnecessary repetition of facts or the issue should be avoided.

A courtís rationale for its holding might be a simple explanation of its thought process. Alternatively, the reasoning might be based on the plain language of the statute, Congressional intent, the re-enactment doctrine, or other common means of resolving judicial disputes.


After reviewing this lesson, we recommend that you brief Burnet v. Logan  (S.Ct., 1931) and Bingler v. Johnson (S.Ct., 1969). First, read the case carefully two or more times. Second, summarize the decision following the guidelines above. Third, critically compare your effort with the Burnet v. Logan brief or Bingler v. Johnson brief we provide.

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