9.4.1 FORMAT AND FUNCTION
Court rules do not give much guidance about point headings. Supreme Court Rule 24.1(h) mentions them in passing, noting that an effective summary of the argument should not merely repeat “the headings under which the argument is arranged.” They are rarely mentioned at all in the limited court rules that guide motion briefs, and even then they are mentioned only in reference to related material—for example, the pleading standard that applies to a given section of the argument—and not in reference to the content of the heading itself.
Nevertheless, well-drafted point headings can help both the reader and the user get the maximum benefit from the brief.Format Requirements for Point Headings
Traditionally, major contentions are labeled with roman numerals. Subpoints under roman numerals are labeled with UPPERCASE letters. Subpoints under uppercase letters are labeled with Arabic numerals. Subpoints under Arabic numerals are labeled with lowercase letters. Thus:
I. A.
1. a. b.
2. B. C.
Conventional wisdom is that you should never have a “I” without a “II,” an “A” without a “B,” and so on. While this advice is valid (because you cannot divide something into just one section), there is an exception in written advocacy. If your argument relies on one dispositive point, that point can be labeled as a “I” even though there is no “II.” (Some writers, in the alternative, simply do not label their main argument with a roman numeral at all.) Note that the only exception to this point is at the roman numeral stage. You must have at least a “B” heading if you have an “A” heading, a “2” if you have a “1” heading, and so on. Some scholars recommend that brief writers should use so-called scientific numbering, as this text does.29
Thus: 1.
1.1 1.1.1 1.1.2
1.2 1.3 2. 2.1 2.2 Although some traditionalists may use all capital letters for the text of their roman numeral (or main) point headings and underline the next level of point headings, these traditions no longer make sense.
They come from the days before word processors; typewriters did not allow much flexibility. Unless court rules require otherwise, you should consider putting all headings (both point headings and section headings—e.g., The Summary of the Argument) in boldfaced type to increase their visibility and thus help the user to find particular segments of the brief.The reason for this suggestion is that this method of enumeration makes it easier for readers to be aware of their location within the document as a whole.30Scientists have found that this awareness is more difficult for those who read documents on computers or other digital devices, since they are not holding a set of pages that would provide a physical signal of their location within the document.31 Note that the same subpart advice applies to this type of numbering: You can’t divide something into just
one part, so if you have a section 2.1, you should also have a section 2.2. Of course, before using this type of numbering, be certain that it does not violate local rules or entrenched local culture.
Point headings are used as headings and subheadings within the argument section of a brief. They also appear in the table of contents; they are useful there both as a concise summary of major points for the reader and as a tool to help the user find those points. Point headings serve three functions in the body of the argument. First, they give the court easy access to the writer’s basic argument. The point headings are thesis statements of the writer’s argument in each section and subsection of the brief. Point headings are particularly effective as concise statements of the writer’s best points because they occur in a position of emphasis within the document. Anytime the reader takes a break between one segment of a document and another (whether those segments are sentences, paragraphs, or sections) his or her attention peaks. A boldfaced heading spikes the reader’s attention and makes it likely that he or she will pay attention to the information in the heading.
The writer gains maximum benefit from this position of emphasis when his or her major contentions appear in the headings.The second function of the point headings is organizational. The point headings help the reader to understand the relationships between and among the different sections of the argument, for example, that these subpoints are part of the argument related to the related main point heading, or that the writer has three main arguments as expressed in Arabic numbers 1, 2, and 3 (or roman numerals I, II, and III). On a less substantive but equally important note, the point headings help the user to find the particular argument that he or she wants to read. Often, judges and their clerks do not read through a brief from beginning to end. Even if they do once read the brief straight through, after that initial reading they may use the brief like a reference work, and they will use the point headings to help them to find what they are looking for.
The third function of the point heading is its simplest: The point heading provides a graphic break for the reader between sections of the brief. By inserting a heading or subheading, the writer tells the reader, “You are finished with the previous point, and now you are moving on to the next point.” Because reading briefs can be a daunting task, effective use of point headings can help break a long argument up into easy-to-understand (or easier-to-understand) segments. Remember that judges are more likely to be persuaded by briefs that they can easily understand. Therefore, to promote understanding, try not to have more than three or four pages without a point heading or subheading.
At this stage of the writing process, you should have already identified the main assertions you plan to make to convince the court to decide in your favor. When deciding how to arrange these assertions into headings, identify the relationships between and among those assertions. First, group the assertions that are related; second, identify the major assertions. In particular, identify the assertions that are dispositive: That is, if the court agrees with this assertion, it must decide the case in your favor.
When you first try to identify the relationships between and among your headings, your roman numeral, or main, point headings should be only dispositive assertions. This method is the most logical, and it is most likely to display an argument whose main points track the brief’s questions presented. Many good attorneys do not follow this advice, however. If a case is complex, with many sub-issues related to the one dispositive assertion, the brief could end up with sub-sub-sub-subheads. In that situation, it would be preferable to eliminate the single dispositive heading and “promote” all of the other headings. Your starting point, however, should always be to identify the points that are dispositive.