Writing Persuasive Closing Briefs

Writing a strong closing brief is one of the most important steps in the arbitration process. The final submission to the arbitrator offers counsel an opportunity to focus on the key issues and significant evidence in order to present their client’s case in the strongest and most persuasive light. Occasionally, an arbitrator has admitted that the closing brief was the impetus for changing their decision. While such circumstances are rare, the importance of writing a robust brief cannot be overstated. An excellent closing brief should serve as a roadmap, directing the arbitrator to the facts and law they will need to write a fair and lawful final award.

Below are some tips for making your brief stronger:

1. Be succinct.

Outline a concise factual background and then move on to a discussion of issues at the heart of the case. Your arguments should flow easily from the relevant facts and applicable law. The most persuasive closing briefs are written in a clear and succinct style.

One way to do this is to prepare a draft and then look for any peripheral matters and unnecessary words you can delete. No doubt, the arbitrators already have heard about all of the issues, probably more than once, and may be overloaded with facts and alternative arguments. Ideally, your brief should serve as a guide to writing the award, focusing the arbitrator’s attention on what you consider a fair and lawful resolution.

2. Prioritize what’s important.

You need not summarize all the evidence. The court reporter will have prepared a transcript for that purpose. Focus on a limited number of important issues, and review the testimony and documents that support your arguments on those issues. Cite to the transcript with specific page and line references and to the documents by exhibit number, noting key portions of the document.

3. Build credibility.

Avoid exaggerating the strengths of your case as well as disparaging the opposing party. Your professionalism and credibility are critical to the persuasiveness of your arguments, both orally during the hearing and in your written brief.

4. Use laser focus.

Bolster your position with references to key cases. Again, focus on specific excerpts from the most important cases that support your arguments. Blanketing the arbitration panel with dozens of cases will not serve your interests at this late stage in the process. The arbitrators will have already read the cases cited by both sides. Point the arbitrators to the few cases that you believe will be most on point.

5. Favor quality over quantity.

Attach some significant exhibits. While there may be hundreds or even thousands of documents that have been introduced into evidence at the hearings, there will be only a limited number that are key to your case. The arbitrator will have all of the exhibits, so highlight the ones that merit the most attention. Again, the rule is quality, not quantity.

6. Be diligent in documentation.

Be sure that each document you select was discussed with a witness during the hearing. If a document was not important enough to discuss with a witness, it should not be included with your closing submission. The arbitrators will not have had a chance to hear direct testimony and cross-examination regarding that document and will be unlikely to give it any weight at all.

7. Provide details on damages.

Outline your points about damages in detail. If you represent the claimant, make a specific list of the damages that you want the arbitrator to award. Reinforce that list with the appropriate facts and law. Be as specific as possible, and include detailed calculations with references to related expert testimony. By contrast, if you represent the respondent, list the damages you know have been claimed, and make a comprehensive outline of reasons not to award those items and/or why the calculations are incorrect.

8. Respect page limits.

Sometimes the arbitrator will set a page limit for closing briefs. Usually, they will discuss an appropriate length with counsel and then set the limit. Do not exceed that limit. As one of my colleagues asked when presented with a 100-page brief after setting a limit of 40 pages: “Which 40 pages would you like me to read?”

9. Be sure to proofread.

This point may go without saying, but a careful proofreading of the brief is extremely important. Be sure your references to the record and your case citations are correct. You want the arbitrator to read an excellent brief that they can rely on. Any sloppiness will undermine the strength of your arguments and raise questions about the reliability of your work.

10. Make the process efficient.

Focus on a cost-effective and efficient process. If your brief is too long and you submit too much material with it, the arbitrator will have to spend extra time to determine what’s most important. Do that editing before submitting it. Though it is harder to write a short and focused brief than to submit something longer and rambling, it is worth the time and effort to be certain that the arbitrator will give serious attention to your view of the case.

11. Do not make any eleventh-hour additions.

Often, the arbitrator will write an interim award outlining their decisions about the merits of the case to be followed by a final award regarding items such as the award of attorneys’ fees and costs to the prevailing party. After the issuance of the interim award, there usually will be further briefing related to which party is the prevailing party and what is the reasonable amount of fees and costs. However, this is not the time to raise additional new matters not covered by the evidence submitted at the hearing and included in the final briefs and oral arguments, such as new damages evidence that was not presented at the hearings. That ship has sailed.

A good closing arbitration brief should be a roadmap for the arbitrator, directing them to the facts and law they will need in order to write an award consistent with a fair and lawful resolution of the case. Make it as easy as possible for the arbitrator to follow your reasoning and decide the case in your client’s favor.

Zee Claiborne is a JAMS arbitrator and mediator. She handles business disputes, both domestic and international.