11.4.2 PERSUADING WITHIN EACH ISSUE

Exploit natural positions of emphasis within each unit of discourse as well. Make sure that the first paragraph in the section articulates the point you are proving in that section.

In general, state your conclusion as if it is the truth, not as if it is one of many possible ways for the court to rule. Do not begin any section of your argument by stating the issue as a question that must be resolved:

BAD EXAMPLE The next issue turns on whether an officer issuing a citation in lieu of arrest should have the same authority to search as an officer who is placing a suspect under arrest. Instead, articulate the issue as an assertion: GOOD EXAMPLE Officers who issue citations in lieu of arrest and officers who actually arrest should have the same authority to search for weapons that might be used against them.

Similarly, do not label your arguments as your arguments. The petitioner should avoid statements like “The Petitioner argues....” If you do this with any argument, you might as well start every argument with that statement, for each argument in the brief is one of the petitioner’s arguments. The entire document is labeled as “Brief for the Petitioner,” so the court knows that it will be made up of petitioner’s arguments. Do not remind the court of your partisan slant by labeling individual arguments within the brief.

Finally, if practical or ethical requirements require you to discuss cases or arguments that do not support your client’s case, you may decide to deemphasize them by including them in the middle of a point heading section rather than highlighting them in a separate section. For example, in the excerpt below, the writer of a respondent’s brief in Minnesota v. Carter, 525 U.S. 83 (1998), is trying to emphasize connections to cases in which the Court found that a privacy right existed and to deemphasize cases in which the privacy right was found not to exist. Notice how the topic sentence (the first sentence in the paragraph) states the rule in a way that is favorable to her clients before the paragraph discusses a case in which the Court found no expectation of privacy:

Indeed, this Court has consistently found that legitimate expectations of privacy exist outside the home, as long as the circumstances are those in which most people would normally expect to enjoy a feeling of privacy. Olson, 496 U.S. at 96-97. Accordingly, this Court has found that defendants did not have a legitimate expectation of privacy in the contents of a car in which they were merely passengers, and where they had expressed no expectation of privacy in the areas of the car searched. Rakas v. Illinois, 439 U.S. 128, 148-49 (1978). The Rakas Court specifically refused to make a finding as to whether guests in houses or apartments would be treated similarly, noting that “cars are not to be treated identically with houses or apartments for Fourth Amendment purposes.” Id. at 148 (citations omitted).

Of course, “hiding” a contrary authority in the middle of a paragraph or section will not turn a losing case into a winner. You must also show why the substance of your argument is more effective. Using positions of emphasis and deemphasis simply makes it easier for the reader to see and understand the validity of your points. In the example above, the writer takes care to emphasize the Court’s distinction between cars and houses, and ends the paragraph on that point, rather than on the negative point about the passengers’ expectations of privacy.