Trial Brief Paper

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  Scenario

  Tim and Sarah were married on March 3, 1998. They live in a common law state. They have been married 20 years. They met in high school and married when they both were 21. Tim and Sarah are both 41. Neither one went to college until two years after they were married. Tim attended college at 23 to become a physician’s assistant. Tim obtained his certification six years later, at age 29. In order to help support the household, while Tim was in school, Sarah worked at a local bakery as a baker’s assistant making $24,000 per year. Sarah never went to college. Once Tim starting working in his field, Sarah, at age 30, became pregnant with Jasmine, who is now 11 years old. Two years later, Stuart was born. Stuart is 9 years old. Tim’s income allowed Sarah to stay home with the children. Tim makes $150,000 per year. Sarah enjoys being a stay-at-home mom and volunteers at the children’s school functions and is active with the children’s extra-curricular activities.

• Through the years, Tim and Sarah have drifted apart. During the divorce proceedings they have remained living together in the marital home. Both refuse to leave the marital home. Tim stays in the fourth bedroom on the first floor of their two-story home. Sarah stays in the master bedroom on the second floor, which is also where the children have their bedrooms.
• Tim likes to gamble and has been known to spend thousands of dollars in one weekend. His losses are reflected on the parties’ tax returns. He always uses a credit card to which Sarah has no access.
• Sarah likes to drink. Tim thinks she drinks a little too much and she has been known to take the children to school late many times due to oversleeping from her drinking the night before. The children’s report cards show the children being tardy for school at least once a week. Jasmine’s grades are good. Stuart’s grades have dropped in the last three months. Tim and Sarah had a parent-teacher conference with Stuart’s teacher who thought Stuart may have a learning disability. The teacher recommended that Stuart be observed by a special education teacher and then obtain a formal evaluation with a licensed professional.
• Tim believes the children should live primarily with him because of Sarah’s drinking problem. Sarah believes the children are best suited with her. She says Tim is exaggerating about her over-drinking. Sarah has been a stay-at-home mother and the children are used to that routine and still need that consistency. Because of that, Sarah is seeking alimony from Tim on a permanent basis. She doesn’t want to go to work because the children need her to be at home, especially if Stuart is going to need extra attention with his homework. Plus, she has become accustomed to this standard of living. Tim says Sarah is an able-bodied person who can work.
• He doesn’t believe he needs to pay permanent alimony. He could help Sarah with some temporary alimony until she gets a job. The children are both in school now so Sarah doesn’t have to be at home all day. She can work instead, and they can get a tutor to help Stuart. Sarah is also seeking child support from Tim to help her take care of the children while she stays home with them. Tim wants his attorney to file a motion for a vocational evaluator to determine to what extent Sarah can work.
• Tim has limited the amount of money Sarah can spend because she is a shopaholic. He deposits $1,000 a week into a separate checking account for Sarah. She uses the money for groceries and anything else she wants. The rest of his paycheck goes into another separate account in just his name. Tim pays all the expenses from this account. Sarah resents Tim for not trusting her to take care of all of the household expenses. She feels this could relieve some of the stress he feels after coming home from work and having to take care of the bills.
• Tim is very active in Stuart’s weekend activities. Tim takes Stuart to all his seasonal extracurricular activities on the weekend, including baseball and soccer. Sarah leaves all the “boy stuff” to Tim. Sarah is involved with Jasmine’s swim team events. She attends every event. Tim occasionally attends Jasmine’s events, but he is usually working. Sarah gets frustrated with helping Stuart with his homework so she delegated it to Tim and she helps Jasmine with her homework. Occasionally, Sarah will ask Tim for help with Jasmine’s homework if she doesn’t understand something.
• Both Tim and Sarah try to stay physically fit. Sarah attends Pilates and Yoga classes alternating them three times per week in the evenings. She expects Tim to feed, bathe, and put the children to bed during those nights. Tim has a membership to a fitness club where he works out three times per week. He works out before work as the fitness club is in the same building as his office. He is at the fitness club by 6 a.m., so he can start work by 8 a.m. He expects Sarah to take care of the morning routine for the children which includes getting them up, making sure they are ready for school, eating breakfast, packing their lunches, and driving them to school. Sarah volunteers at the school three times per week for two hours each. Tim attends school functions when he can during the day, but always attends functions in the evenings.
• The parties have a residence that has no debt on it because they made double-payments on their 30-year loan. The marital home is valued at approximately $300,000. Sarah wants the home for her and the children. Tim also wants the home for him and the children. The parties have very little debt. They use one credit card for their expenses, but pay it off each month. However, recently, due to attorney’s fees and costs, they have had to put $10,000 on it. Tim does have the credit card that he uses for his gambling habit. Sarah does not know how much he owes on that credit card. Sarah wants Tim to pay her attorney’s fees. Tim believes they should each pay their own attorney’s fees because they each have a savings account with $65,000 each in both accounts. Tim has a retirement account which has $400,000 in it. He set one up for Sarah, as well. Her retirement account has $100,000 in it.
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  Instructions

  The judge wants your attorney to write a Trial Brief to support and argue your client’s position as set forth in your client’s Petition for Dissolution of Marriage, or Counter-petition for Dissolution of Marriage which incorporates the specifics within the scenario above. Using your state’s statutes and/or case law, convince the judge that your client should receive the following, if applicable: primary custody of the children, parental responsibility, timesharing with the children, child support, any type of alimony, and equitable distribution, such as assets, liabilities, exclusive use and possession of the marital home, and attorney’s fees.You may choose to represent either the Husband or Wife, but you must continue to represent your chosen party during each stage of writing through submission of the Trial Brief.

1. Locate your state’s “Rules of Law” related to the project scenario (statutes and/or case law). You should be looking for laws related to child custody and related matters such as parental responsibility and timesharing, child support, alimony, and equitable distribution. You will use these when developing your Question Presented or Issue section(s).
2. In a logical and numerical order, include in a brief outline form, the elements that are found in most trial briefs. The outline should be like a roadmap for writing your trial brief, which should include the major headings (topics) and subheadings (main categories/subcategories).
3. Develop the Question Presented or Issue section(s) by introducing each of its elements such as the law, the question, and the key facts in a persuasive manner. You should be developing separate issues for child custody and related matters such as parental responsibility and timesharing, child support, alimony, and equitable distribution.
4. Develop the Statement of Facts section. The Statement of Facts section is one of the first things the judge reads, so this is your chance to win over the judge. Keep the following things in mind when completing this section:
5. You can refer to your client by name.
6. While being truthful, make your client look as good as possible. If there are any facts that make your client look bad, try to present them in a less noticeable way.
7. You can present the facts in chronological order or in topic order.
8. Present the facts in past tense.

The argument section of the Trial Brief is the most important section. This is where you analyze the law that supports your client’s position and describe why and how the law supports the position of your client.

During Part 1 of the argument section, you will focus on primary custody of the children, parental responsibility, timesharing with the children, and child support.

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When presenting the cases and statutes to make your argument, make sure the favorable cases and statutes stand out and discuss how they apply to your client’s case. You should also include the unfavorable cases and statutes showing why they are different and how they should not apply to your client’s case.

Do not just summarize your cases and statutes. Using the IRAC approach, analyze and apply them to your client’s case so the judge will see how the cases should be used to rule in your client’s favor.

Additionally, remember to use the feedback you received on your previous submission, spend time making improvements to your overall course project.

Continue working on the argument section of the Trial Brief. During Part 2 of the argument section, you will focus on alimony and equitable distribution, such as assets, liabilities, exclusive use and possession of the marital home, and attorney’s fees.

In the discussion of your legal authority, make sure the favorable cases stand out and discuss how they apply to your client’s case. You also should include the unfavorable cases showing why they are different and how they should not apply to your client’s case.

Do not just summarize your cases. Using the IRAC approach, analyze and apply them to your client’s case so the judge will see how the cases should be used to rule in your client’s favor.

Format

1. You will divide your argument into sections.
2. Each section must have its own header.
3. You can use Roman numerals or other identifying numbering.
4. You may center the header on the page or left justify it.
5. The Trial Brief is a persuasive document; attempt to make even your headers persuasive.
6. If you need to, you can also use subheadings; these usually use capital letters of the alphabet for identification.
7. Your citations should also appear in the body of the Trial Brief. Use The Bluebook method of citation.
8. Never use first person when writing.
9. Focus on the parties, referring to them by name or using their titles, such as husband or wife.