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).

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).

Writing Tip of the Week: Imply and Infer

Writers sometimes mistakenly use the word “infer” when they really mean “imply.” Although the two words are related, they are used differently. To imply means to suggest or express indirectly.  To infer means to deduce, conclude, or assume.  

Thus, use imply when the actor is sending an indirect message; use infer when the actor is receiving, or drawing inferences from, someone else’s  message.  The person who implies something is the sender of the message, whereas the person who infers something is the recipient of the message. 

·    The detective implied (suggested) that the defendant was guilty by testifying, “He ran when he saw me, didn’t he?”   

·    The detective inferred (deduced or concluded) from the defendant’s demeanor that he was hiding something. 

·    During the settlement negotiations, the plaintiff’s lawyer implied (suggested) that his client would consider a lesser settlement if the defendant publicly apologized.  

·    When the victim filed a civil suit, the defendant’s counsel inferred (deduced or concluded) that the victim was no longer committed to pursuing criminal charges.

For further information, see Anne Enquist & Laurel Currie Oates, Just Writing 310 (3d ed. 2009) and Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 775 (5th ed. 2010).

 

Writing Tip of the Week: That, Which, and Who

The relative pronouns that, which, and who are used to join a dependent clause to the rest of the sentence.  They “relate” the clause back to a noun.

·    The house that the defendant lived in was on Mulberry Street. (clause relates or refers back to the noun “house”) 

If the clause relates to a person, use who.  If the clause relates to a thing, use that if the clause is restrictive and which if the clause is nonrestrictive.  “Restrictive” means that the clause restricts the meaning of the noun—it helps identify the noun. “Nonrestrictive” means that the clause does not restrict the meaning of the noun, but merely provides additional information about a noun that has already been fully identified.   

Clauses beginning with which are nonrestrictive and should be set off with commas; that clauses are restrictive and should not be set off with commas.  Who clauses can be restrictive or nonrestrictive.

·    The driver who hit the green car was seriously injured. (clause refers to a person and is restrictive because it identifies the specific driver being referred to, so use who with no commas)

·     The car that the police were chasing reached the intersection first. (clause refers to a thing and is restrictive because it identifies the specific car being referred to, so use that with no commas)

·      The blue car, which entered the intersection after the accident, was not speeding.  (clause refers to a thing and is nonrestrictive because it is not needed to understand which car is being referred to, so use which with commas)

Relative clauses that follow proper nouns are nonrestrictive; the reader understands what the noun is without the information in the clause. 

·     Justice O’Connor, who wrote the dissenting opinion, applied a novel analysis. (clause refers to a person who is completely identified by name, so it is nonrestrictive--use who with commas)

Anne Enquist & Laurel Currie Oates, Just Writing 215-20, 311 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 656-58 (5th ed. 2010).

Writing Tip of the Week: Persuasive Style Part II

 

Give favorable information the most “airtime.”  Emphasize favorable information by describing it in detail; de-emphasize unfavorable information by describing it more briefly. 

·     Ms. Smith consumed alcohol at the party.

·     Ms. Smith immediately began guzzling beer from a keg.  She then downed numerous shots of Jack Daniels during a drinking game. 

Emphasize favorable information by placing it at the beginning or end of a paragraph or sentence or in a short sentence.  “Bury” unfavorable information by placing it in the middle of a paragraph or sentence.  

• Ms. Smith described the man as six feet tall and 180 pounds, with gray sweatpants, dark hair, and a beard. (to bury gray sweatpants)

 

• Ms. Smith described the man as six feet tall and 180 pounds, with dark hair and a beard.  She noted that he was wearing gray sweatpants. (to emphasize gray sweatpants) 

Juxtapose favorable and unfavorable information.  Juxtapose unfavorable information in a subordinate clause with favorable information in a main clause. 

• Although the boy waved a gun in the air, no one was injured.  (to emphasize that no one was injured)

 

• Although no one was injured, the boy waved a loaded gun in the air. (to emphasize that he was waving the gun) 

Use active and passive voice strategically.   Use the active voice when you want to connect a party with certain actions and the passive voice when you want to distance a party from those actions.

·   The Defendant abruptly transferred Mr. Smith to a branch office two weeks after Mr. Smith’s wife filed a discrimination claim. (active)

• The Plaintiff was transferred because of staffing issues. (passive) 

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 314-15 (2d ed. 2006); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 271-75, 354-61, 513-18, 529-31 (5th ed. 2010).

 

Writing Tip of the Week: Persuasive Style--Part I

Be a subtle advocate.  Don’t risk losing credibility with your reader by coming on too strong or attacking the other side.  Instead, strive for a reasonable tone.

·     Too strong:  No one could possibly believe that Mr. Smith’s complaints about his new office have any merit whatsoever.

·     Better:  Mr. Smith’s complaints that his new office is unattractive and that the printer is too far away are mere inconveniences rather than significant changes in his employment status.  

Choose persuasive words.  To emphasize favorable information and present your case positively, use colorful and persuasive verbs, adverbs, and adjectives.  To de-emphasize facts or information, use neutral, colorless words. 

·        The witness promptly spotted the man as he fled from the store.

·        The witness saw a man leave the store. 

Frame your arguments as conclusions rather than opinions.  Opinion statements are less persuasive and typically include unnecessary “throat-clearing” phrases such as “it is arguable” or “our client maintains.”

·        Opinion:  It is our contention that Mr. Smith took reasonable measures to keep the information secret.

·        Better:  Mr. Smith took reasonable measures to keep the information secret. 

Argue affirmatively, rather than defensively.  Focus your reader on your own argument by making affirmative instead of defensive statements whenever possible.  

·        Defensive:  The defendant wrongly claims, on public policy grounds, that she should not be liable for the injury to Mr. Jones.

·        Affirmative:  Public policy mandates holding the defendant liable to Mr. Jones. 

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 311-26 (2d ed. 2006); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 353-61, 592 (5th ed. 2010).

Writing Tip of the Week: Using Quotations

 

Don’t make the mistake of overusing quotations because you are unsure about how to use them.  Remember that the purpose of quotations is to call attention to specific words.  You lose the reader’s attention when your quotations are too long or too frequent, so quote only when the exact words themselves are important.  

Statutes are a good example of when the exact words matter:  a case often turns on the interpretation of particular statutory language. But even when quoting a statute, be selective about how much you quote, and quote only the portions of the statute that are relevant to your issue. 

Use quotations from case law more selectively.  You should usually paraphrase the court’s holding and reasoning, saving quotations for key words and phrases or sentences that are so well-written that you could not improve on them. You will rarely need to quote the facts of a case.  

·    Finding that there was no “special relationship” between the parties, the court held that the University had no duty to protect the plaintiff from the “well-known dangers of using a trampoline.”  University of Denver v. Whitlock, 744 P.2d 54, 62 (Colo. 1987).  

When you do use quotations, quote the material accurately.  Use brackets to show any changes or additions you have made to the original and ellipses to show any deletions necessary to make the quotation fit within your sentence.  

• The purpose of the Good Samaritan statute is “to encourage . . . assistance by persons on a voluntary basis to enhance the public safety.”  Colo. Rev. Stat. §13-21-116(1) (2005).

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument, 257-59 (2d ed. 2006); Anne Enquist & Laurel Currie Oates, Just Writing 111-13 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 555-56 (5th ed. 2010).