Tuesday, April 9, 2013

Writing Tip of the Week: Writing the Summary of the Argument

The Summary of the Argument in a brief is, in a nutshell, a summary of the best reasons your client should win the case.  Judges often read the Summary before they read the brief, so the Summary sets up your argument by giving the judge the context to view it favorably.  For a judge who doesn’t have time to read the whole brief, the Summary is even more important.

Placement.  In an appellate brief, the Summary comes after the Statement of the Case and before the Argument section.  In a motion brief, the Summary, or “Introduction,” comes before the Statement of the Case.

Content.  According to Fed. R. App. P. 28(a)(8), the Summary “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.”  Although the Summary provides a roadmap of your argument, it is different from the overview paragraph because it is a stand-alone section of the brief.  It covers the main arguments addressed in your point headings, but should not merely repeat them. Try to strike a balance between the detail in the argument section and the more condensed point headings.

Length.  The summary should not be overly long—one to two pages at most.  Typically, that means one paragraph per issue (and perhaps an introductory paragraph if there is more than one issue).  Although you need not give equal weight to each argument, the Summary should follow the same order as your argument section.

Citations.  The Summary should center on the arguments themselves.  Therefore, although you may sometimes need to reference a key statute or controlling case to make your Summary understandable, you will not usually include citations.

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 480-83 (2d ed. 2006); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 361-62 (5th ed. 2010).

Wednesday, April 3, 2013

Writing Tip of the Week: Using Topic or Thesis Sentences in a Brief

As in a legal memorandum, a topic or thesis sentence for a rule explanation in a brief signals your reader that you are introducing new material.  However, unlike a topic sentence in a memo, it is not an objective statement of the rule. Use a topic sentence in a brief to state the rule in a way that subtly favors your client’s position.   

  • To determine whether a public figure may recover damages for false statements, the court considers whether the statements were made with “actual malice.” [cite] (objective statement)
  • A public figure is entitled to damages for false statements when the publisher makes the statements with “actual malice.” [cite] (favoring public figure)
  • A public figure may not recover damages for a publisher’s inaccurate statements unless the statements were made with “actual malice.” [cite] (favoring publisher)
In a brief, a topic sentence for a rule explanation section should be a favorable statement of the legal rule gleaned from a case or group of cases. The topic sentence sets the tone for the favorable facts and rationale that follow.  Although you must address negative facts and rationale, you will give the most attention to those that favor your position.

When the result of a case is favorable to your client, state the rule broadly.  When the result is unfavorable, frame the rule as narrowly as possible.  If part of the rule is favorable, emphasize the favorable part and de-emphasize the unfavorable part.  

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 339-48, 367-75 (2d ed. 2006); see also Anne Enquist & Laurel Currie Oates, Just Writing 41-44 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 173-75, 487-91 (5th ed. 2010).