This is something I've been thinking we should cover for long time. Here in the District of Delaware, the local rules set forth a required structure for every brief—but out-of-town counsel often seem to miss that.
Basically, Local Rule 7.1.3(a)(c) requires that an opening or answering "brief" contain seven specific sections in a specific order:
- A table of contents (TOC)
- A table of citations and authorities (TOA)
- A "statement of the nature and stage of the proceedings"
- A summary of argument
- A "concise statement of facts"
- An argument
- A short conclusion.
These look simple, but they trip people up sometimes. Here are some tips for each section.
Required Sections for Every Opening and Answering Brief
TOC / TOA: Every brief is required to have a table of contents and a table of authorities. There are no exceptions. You should include a TOC/TOA.
That said, one place I've seen these omitted is for claim construction briefs, which for most judges are served among the parties and then combined (with a TOC/TOA added at that point) before being filed.
Nature and Stage of the Proceedings: Parties often treat this as an introduction, and in my view that's how it works best. They write a short introduction that also touches on the nature and stage of the proceedings. For example, a brief could start with a statement of what the motion is and the "short, short version" of why the party writing the brief should prevail.
As one of our former judges used to complain, a bad way to start this section (and your brief) is a rote overview of what kind of case it is. I would not start with "this is a patent action between [long party name] and [long list of defendants]. The complaint was filed on [who cares] and asserted [some number of patents that doesn't matter for the purposes of this motion]."
I have not seen an order from the Court saying that the required "nature and stage" section must be a rote recitation of information that is already available on the docket. Really, I would treat it as an introduction that also includes necessary information about the nature and stage of the proceedings (potentially as simple as "Plaintiff moves to compel . . .").
Can you have an introduction and a statement of the nature and stage of the proceedings? Yes, I guess. I have seen that and the Court did not complain. But do you really want to bore the reader with what are essentially repeated introductions, or with mostly-irrelevant information that they could get from the docket?
A Summary of Argument: The rules require that this section, which follows the nature and stage, "set[] forth in separately numbered paragraphs the legal propositions upon which the party relies." Parties often miss the fact that this is meant to be "legal propositions" in "numbered paragraphs."
A short summary of each major point seems to work best. Some attorneys try to shove their entire brief into the summary, which feels repetitive. If you find yourself asking questions like "how many paragraphs can we have per number," "do we really have to number them," and "do we have to include legal standards," you have likely gone too far with your summary of argument.
A Concise Statement of Facts: The rule requires you to include citations, and every judge is going to want pinpoint cites. For answering briefs, you don't have to (and often shouldn't) repeat information that was set forth in the opening brief.
This "concise statement of facts" requirement tends to trip people up when it comes to summary judgment briefing. Some of our judges require a "separate concise statement of material facts" for summary judgment. These are two different things.
In a summary judgment brief before a judge who requires a separate concise statement of material facts, you need to have two things: a regular plain-Jane statement of facts in your brief, and a separate concise statement that lists only the material facts. The separate concise statement for an SJ motion is kind of an art that requires careful consideration. And don't try to omit the statement of facts from your brief and use the separate concise statement to expand your page limits—that way lies madness.
An argument: We all know what this is. But it's worth calling out something that the local rules do not require: a "legal standards" section. In my opinion, legal standards sections are often a waste of space. A lot of the stuff in there doesn't get used, particularly for common issues like the summary judgment standard. Instead, I would just weave any helpful legal standards citations into the relevant parts of the brief.
A short conclusion stating the precise relief sought: This is pretty straightforward, and usually starts along the lines of "For the foregoing reasons, [plaintiff/defendant] respectfully requests that the Court [grant/deny] the motion . . . ."
But one thing that's worth mentioning in this context is the "proposed order." These are great and you should often include one, even though they are not required by the rules, because it shows the Court exactly what relief you are requesting. Used right, it removes all ambiguity about what you'd like the Court to do. (Of course, if your proposed order just says "the motion is hereby [granted/denied]"—and nothing more—you are just wasting the reader's time).
Required Sections for Reply Briefs
The above requirement do not require the same sections. Please don't jam all of that stuff into your reply.
What they do require, however, is a TOC and TOA. There is no exception for short briefs. See LR 7.1.3(c)(2).
What Happens If I Don't Follow the Required Structure?
Probably nothing, I'd guess. I cannot recall an instance where the judges enforced this local rule. But do you really want your brief to stand out for failing to follow the local rules?
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