9.4.2 DRAFTING THE POINT HEADINGS

A classic point heading is a concise, persuasive statement of 1. either a. a conclusion that you want the court to accept OR b. an action that you want the court to take, PLUS

2.

To draft your point headings, first consult your list of ultimate assertions and identify something you want the court to do or something the court must conclude or agree with to decide in your client’s favor. Next, identify the reasons that support taking those actions or reaching those conclusions. If the reasons are the subparts of an argument, make each reason a separate point heading. If there are no subparts in that section of the document, “add” the reason(s) to the assertion, often with a “because.”

For example, this point heading, from a respondent’s brief in Knowles v. Iowa, 525 U.S. 113 (1998), is based on something the writer wants the court to do: 1. This Court should extend the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement to situations in which an officer is issuing a citation in lieu of arrest. The same point could be written in a different way, as an assertion that the writer wants the court to agree with: 1. The search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement should include situations in which an officer is issuing a citation in lieu of arrest. The three subheadings below show the reasons that support the writer’s assertion: 1.1. The situation contemplated by Iowa Code § 805.1(4), where an officer issues a citation in lieu of arrest, presents the same policy concerns as when an actual arrest takes place. 1.2. The public interests advanced by such a search substantially outweigh the extent to which the search intrudes upon individual privacy rights. 1.3. Outlawing a warrant exception for a search incident to a citation in lieu of arrest would encourage police officers to arrest more people in order to conduct searches.

Note, however, that many readers will skip point headings that are more than three lines long, or even more than two lines long. An imperfect short heading that a judge reads is better than a perfect heading that a judge skips because it is too long.

Thus, when space permits, a good point heading should (1) indicate the issue being discussed, (2) indicate your position on the issue, and (3) indicate the basic reason(s) for that position. (If needed, you can eliminate item (3) to keep the heading to a reasonable length.) Accordingly, your point headings should be full sentences, not phrases. They should be statements about how the law applies to the people or entities in your case, not abstract pronouncements about the law generally.³² As a test, see if you could “recycle” your point heading in another brief on the same point. If so, you probably need to be more specific. In particular, you need to be more specific if your point heading could be used in your opponent’s brief. For example, don’t write, “The First Amendment protects freedom of speech.” Instead write, “Because the First Amendment protects freedom of speech, Ms. Zahm should be allowed to distribute homemade, anonymous leaflets at a public rally.”