Introduction

This post will explain the difference between a “brief bank” and templates.  Thereafter, it will explain the advantages of templates and some dangers.

Brief Bank Materials

A brief bank, such as that provided by the Central California Appellate Program (CCAP) or California Appellate Defense Counsel (CADC), is a collection of briefs containing arguments from attorneys.  These materials are typically actual, filed briefs.  These brief bank materials can be helpful in many respects, especially when brand new issues appear, such as those that appeared in the wake of the passage of Senate Bill 1437.  It is much better for you and your client typically to have some point of reference, as opposed to starting from scratch.

Explaining Templates

Templates are different.  A template is an argument written in shell form with tooltips inserted to educate you on how to tailor your brief.  For example, a template related to an argument on wrongful inclusion of autopsy photos would include:

• a header
• an introduction with a tooltip as to how to tailor the intro language for your case
• the stock law related to Evidence Code section 352 and autopsy photos
• a digest of the most important cases on the topic of autopsy photos
• suggestions on how to use the facts of your case to compare to the digested cases for your analysis; and
• a prejudice section with the correct stock law and suggestions on how to argue it.

The Advantages of Templates

In my 25 years as an attorney, I have found templates to be vastly superior relative to brief bank materials.  Templates coach and instruct in a way that brief bank materials do not.  They also speed one along, as little time is spent deleting and modifying.  The aspects of the argument that are to be modified are delineated.  Perhaps most importantly, there is less mental energy spent on how to modify; coaching/tooltips explain the how.

The Dangers of Brief Bank Materials and Templates

Any article on brief bank materials or templates would be remiss not to mention the dangers.  The most obvious danger, whether you are working with templates or brief bank materials, is working from materials that are not updated and maintained.  For example, you may have a unanimity argument from 2018 that predates the 2020 U.S. Supreme Court decision that clarified the federal nature of unanimity.  Based on this outdated brief bank argument, you write an argument including a Chapman and Watson analysis when the Watson analysis should no longer be included.  

Our intent with the Brief Pilot templates is to recognize the law evolves.  We have endeavored and will continue to endeavor to keep the templates updated.  We won’t be perfect, of course, and thus the onus is always on you the attorney writing the brief to double-check the citations to make sure the cases cited are still good law.  Our hope is that your client will get a much better brief because you will have more time to spend looking for great cases to support your argument and precisely tailoring the template to your facts.

Our Template Strategy

As part of keeping the templates updated, we are limiting the total number of templates to a reasonably manageable number.  Accordingly, we omit templates on rarer issues.  

This limitation has advantages.  It makes the templates easier to keep updated, and also makes our template library more readily searched.   

We are hoping that you find the Brief Pilot templates strike the balance of including what should be included and omitting the rest.  Please let us know what you think.  We are happy to add templates that you provide or suggest.