10.2.1 TOPIC SENTENCES

Although most of us learned in grade school that the topic sentence could be the first, second, or last sentence in the paragraph, in legal writing the topic sentence should always come first.

Topic sentences can also help the legal writer: When well written, they signal the document’s organization and can be used to check organizational effectiveness. After you have used the guidelines below to write an effective topic sentence for each paragraph (and verified that each sentence in the paragraph is connected to that topic), you can make a “topic sentence outline” by copying and pasting the first sentence of each paragraph into a new document.

When you review the topic sentence outline, you should see logical groupings: First, you should find several topic sentences relevant to your first point, then several topic sentences relevant to your second point, and so on. To the extent that you find topic sentences that are out of place, decide whether to fix the topic sentence, move the paragraph to a new location, or remove the paragraph from the brief.

Two reminders can help you to write effective topic sentences in a brief. First, whenever possible, use the phrase-that-pays within the topic sentence. Second, focus particular attention on topic sentences for rule explanation paragraphs. Those paragraphs lay the foundation for your argument, and the topic sentences provide an important substantive and persuasive opportunity.

a. Include the Phrase-That-Pays in Each Topic Sentence

One objective method you can use to check the effectiveness of your topic sentences is to look for the phrase-that-pays. Using the phrase-that-pays in each topic sentence tells the reader that the paragraph is worth reading and that it will provide more information about the word or phrase that is the focus of that section of the document.

The phrase-that-pays is almost always the best way to show the paragraph’s focus on the key topic. In the examples below, from a section of a Minnesota v. Carter petitioner’s brief, the writer was arguing that the respondents did not have an expectation of privacy in the apartment in which they were bagging drugs because they were there only for a commercial purpose, so “commercial purpose” was the phrase-that-pays for that section. Notice how, in the first list of topic sentences below, the writer does not always use the phrase-that-pays. The words “commercial purpose” or their substitutes are italicized:

BAD EXAMPLE Respondents were not present in a “home,” but were on property for a purely commercial purpose. This Court has recognized that business premises invite lesser privacy expectations than do residences.

In Lewis, this Court held that a defendant who used his home for the felonious sale of narcotics could not claim a violation of any reasonable expectation of privacy when an undercover officer entered the home to purchase marijuana.

Utilizing the same reasoning, the D.C. Circuit held that a visitor who used another’s apartment solely to conduct drug transactions could not claim Fourth Amendment protection. In the present case, Respondents, like the defendants in Lewis and Hicks, were present on property for the sole purpose of conducting criminal business. Like the apartments in Lewis and Hicks, the property in the present case had been converted into a commercial center to which outsiders were invited for purposes of transacting unlawful business.

Whenever you substitute synonyms for the phrase-that-pays, you risk confusing and alienating the reader or user. In the example shown above, the reader must do some work to recognize that “business,” “sales,” and “drug transactions” are all related to the concept of “commercial purposes.” Although most people would be able to make this connection with a little extra effort, your argument should not require the reader to make any extra effort. You should make the extra effort and incorporate the phrase-that-pays into each topic sentence to signal that the paragraph says something meaningful about the phrasethat-pays. In the list that follows, notice how small revisions allow the writer to incorporate the phrase-that-pays:

BETTER EXAMPLE Respondents were not present in a “home,” but were on property for a purely commercial purpose. This Court has recognized that business premises, which exist for commercial rather than domestic activity, invite lesser privacy expectations than do residences.

In Lewis, this Court held that a defendant who used his home for the commercial purpose of selling illegal narcotics could not claim a violation of any reasonable expectation of privacy when an undercover officer entered the home to purchase marijuana.

Utilizing the same reasoning, the D.C. Circuit held that a visitor who used another’s apartment solely for the commercial purpose of conducting drug transactions could not claim Fourth Amendment protection. In the present case, Respondents, like the defendants in Lewis and Hicks, were using the property for a commercial purpose: They were present on the property for the sole purpose of conducting criminal business. Like the apartments in Lewis and Hicks, the property in the present case had been converted into a commercial center to which outsiders were invited for purposes of transacting unlawful business.

The small amount of work it will take to incorporate the phrase-that-pays is worth the trouble. Using the phrase-that-pays in a topic sentence increases the likelihood that the reader will actually read the paragraph, and that the user will find the paragraph that he or she is looking for. These topic sentences therefore increase the value of your argument by making it easier to read and easier to use.

b. Use Legally Significant Categories in Topic Sentences

Topic sentences can be used effectively in the summary of the argument and the fact statement, but their effectiveness is crucial in the argument section. In particular, the topic sentences in the rule explanation section have a job to do. At a minimum, an effective topic sentence in the rule explanation should tell the reader something about what the phrasethat-pays means, usually by showing how it has been applied in the past. A formula for an effective topic sentence in the explanation might be expressed as:

Phrase-that-pays is established [or cannot be established] when category of facts or reasoning that reveals a new facet of the phrase-that-pays exists. [Citation to relevant authority.]

Many writers waste the beginning of a rule explanation paragraph with a sentence about the facts of an authority case, as in this example from a brief about Rubin v. Coors Brewing Co., 514 U.S. 476 (1995):

BAD EXAMPLE In McGuffin, the owner of a casino gambling operation sued to enjoin enforcement of a restriction on casino advertising. 101 U.S. at 101.

This sentence tells the reader that the paragraph is about the McGuffin case. While on some level that may be true, the paragraph is probably really about the principle from the McGuffin case, and that principle — and its phrase-that-pays — should be the focus of the topic sentence:

GOOD EXAMPLE State legislatures have more latitude to regulate speech in areas of socially harmful activity.

By using legally significant categories in the topic sentence, the writer focuses the reader’s attention on the true point of the paragraph: the legislature’s ability to “regulate speech,” which is the focus of that section of the document. The reader then knows that this paragraph will explain some new facet of the conditions under which states may regulate speech: They have more authority to do so when socially harmful activity is at issue. In the first example, in contrast, the reader knew only that the writer would be talking about the McGuffin case.

Being able to identify legally significant categories is an important skill in legal analysis, and you can use it to your advantage in topic sentences. For example, if you are planning to argue that the rule in the case(s) discussed in a particular paragraph should apply in the same way to your client’s case, you will want to look for categories — and use language — that makes it easier for the reader to see that connection. In the example above, the writer was advocating for restrictions on beer advertising and wanted to analogize those restrictions to restrictions on casino advertising. Rather than talking about the specifics of casino advertising, she talked categorically about “socially harmful activity.” If appropriate, the writer might also find a way to use a framing word — such as “broad,” “general,” “wide,” or the like — that highlights the breadth of the latitude allowed to state legislatures:

GOOD EXAMPLE State legislatures have wider latitude to regulate speech in areas of socially harmful activity. McGuffin, 101 U.S. at 101.

The topic sentence connects the concept of the phrase-that-pays—regulating speech—to a legally significant category from an authority case — socially harmful activity. Upon reading this sentence, the reader may instantly realize that drinking beer is a socially harmful activity and decide that state legislatures should have more latitude to regulate it.

In contrast, if the writer were arguing against limits on beer advertising, she might try to talk about the McGuffin case in a way that stressed its differences from the client’s case. The restriction on speech was allowed in McGuffin, so the writer might first, if appropriate, use language like “only,” “narrow,” “few,” or “limits” to signal that a restriction of this type is unusual. Furthermore, instead of using a category that is easy to connect to beer drinking — “socially harmful activities” — the writer could try to be more specific or to identify a category that might not connect so readily to the concept of drinking beer:

GOOD EXAMPLE Only on rare occasions — such as when an activity operates within strict geographic parameters — has this court allowed states to regulate advertising-related speech. McGuffin, 101 U.S. at 101.

By categorizing casino gambling as an activity that operates within strict geographic parameters, the writer can lead the reader to distinguish it from beer drinking, which does not have those limits. She may then have more success with her argument that her client’s situation does not represent one of the rare occasions that call for regulation of speech.

Thus, in the rule explanation section, you can use the topic sentence as a tool to characterize the law in a favorable way. Two caveats: First, be sure that your characterization is fair as well as persuasive. Second, be certain that the case description(s) that follows the topic sentence provides support for the characterization that appears there. (See Chapter Six to review techniques for effective case descriptions.)

Effective topic sentences make it easier for you to check your organization. More importantly, they make it more likely that readers will keep reading and that users will find the paragraphs that they are looking for. Finally, when you review authority cases for analogous or distinguishable categories to use in your topic sentences, you may generate substance for your arguments.