9.5 SUMMARY
The Issue Statement, the Statement of the Case, the Summary of the Argument, and Point Headings each hold a special place in the brief. The reader and user have different expectations and needs for these elements than they have for the Argument Section.
By writing a good question presented, a brief writer can focus the reader on an issue presented from the client’s point of view. A well-written fact statement can lead the reader to draw favorable conclusions even before the reader reaches the argument. An effective argument summary can give the reader a complete picture of the writer’s argument, and better prepare the reader to absorb the details presented within the argument itself. Finally, well-written point headings can help the user to find and the reader to understand the writer’s arguments. Paying attention to these “special teams” can help a writer to craft a winning brief.
Chapter Nine Review
1. Questions Presented and Issue Statements: a. Make sure your questions include the relevant law, the legally significant facts, and the core legal question.
b. Use the under-does-when format, the whether format, or the multi-sentence format. c. Don’t assume elements at issue, and take care to avoid going on too long. 2. Fact Statements: a. Be sure to begin with appropriate context. b. Include citations to the record, typically after each sentence. c. Consider whether chronological or topical organization will best help your client. d. Exploit natural positions of emphasis. e. Use pointillism, enthymemes, and other techniques to help your reader to engage in narrative reasoning. f. Use the buddy system: pair any bad fact with a good fact to deemphasize its negative impact. 3. Summary of the Argument: a. Decide whether to start with a boom opening or a wait-a-minute opening. b. Provide a holistic overview of your argument, and avoid all but the most significant citations to authority.
4. Point Headings: a. Consider the relationships between and among the headings, and between the headings and surrounding text. b. Use argumentative sentences for the headings. c. Strive to keep your headings to two lines, and never go over three lines. d. Bookmark the headings or use some other method to provide your reader with organizational signals and easier navigation.1Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 12 (1999). 2See Bryan A. Garner, The Deep Issue: A New Approach to Framing Legal Questions, 5 Scribes J. Legal Writing, 1, 4 (1994-95).
3 People who are particular about grammar often cringe at the “whether” format because lawyers use it as if it is a complete sentence, even though it is technically a sentence fragment. (If you wanted to use the format correctly from a grammar viewpoint, you would write, “The issue is whether...” and end the sentence with a period.) Lawyers, however, have adopted the “whether” format as a valid sentence (using either a question mark or a period) and seem unlikely to change.
4 Karl N. Llewellyn, A Lecture on Appellate Advocacy, 29 U. Chi. L. Rev. 627, 630 (1962) (cited in Bryan A. Garner, The Deep Issue: A New Approach to Framing Legal Questions, 5 Scribes J. Legal Writing 1, 11 (1994-95)). 5See Ruggero J. Aldisert, Winning on Appeal 142-43 (rev. 1st ed., Nat’l Inst. Trial Advoc. 1996). 6 Fred I. Parker, Foreword: Appellate Advocacy and Practice in the Second Circuit, 64 Brook. L. Rev. 457, 461 (1998). 7Id. 8 Supreme Court Rule 24.2 permits respondents and appellees to omit several items from the brief (questions presented, the list of parties to the proceedings, opinions below, jurisdictional statement, statutes involved, and statement of the facts) “unless the respondent or appellee is dissatisfied with their presentation by the opposing party.” In most appellate advocacy courses, however, students are required to include all elements of the brief. 9Clyde H.
Hamilton, Effective Appellate Brief Writing, 50 S.C. L. Rev. 581, 586 (1999). 10See, e.g., Parker, supra note 6, at 462. 11Morey L. Sear, Briefing in the United States District Court for the Eastern District of Louisiana, 70 Tul. L. Rev. 207, 219 (1995). 12Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 568 (1999). See also Joel F. Dubina, How to Litigate Successfully in the United States Court of Appeals for the Eleventh Circuit, 20 Cumb. L. Rev. 1, 5 (1998/1999); Sarah B. Duncan, Pursuing Quality: Writing a Helpful Brief, 30 St. Mary’s L.J. 1093, 1101 (1999). 13Parker, supra note 6, at 462. 14For an excellent discussion of persuasive writing techniques in fact statements, see Laurel Currie Oates & Anne M. Enquist, The Legal Writing Handbook §§ 17.7, 18.12 (5th ed., Wolters Kluwer 2010). 15Linda L. Berger, How Embedded Knowledge Structures Affect Judicial Decision Making: A Rhetorical Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes, 18 S. Cal. Interdisc. L.J. 259, 263 (2009) (“We make sense out of new experiences by placing them into categories and cognitive frames called schema or scripts that emerge from prior experience.”) (citations omitted). For further discussion of narrative theory and other persuasive writing techniques, see Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (3d ed., Aspen 2012); Ruth Anne Robbins, Steve Johansen & Ken Chestek, Your Client’s Story: Persuasive Legal Writing (Aspen 2012). 16See Steven J. Johansen, This Is Not the Whole Truth: The Ethics of Telling Stories to Clients, 38 Ariz. St. L.J. 961, 992 (2006) (“left unchecked... [the] deception [of false stories] could be disruptive to our legal system”). 17See Jennifer Sheppard, Once Upon a Time, Happily Ever After, and in a Galaxy Far, Far Away: Using Narrative to Fill the Cognitive Gap Left Behind by Overreliance on Pure Logic in Appellate Briefs and Motion Memoranda, 46 Willamette L. Rev. 255, 256 (2009). 18Ruth Anne Robbins, Harry Potter, Ruby Slippers and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle U. L. Rev. 767, 768-69 (2006). 19Id. at 788. 20See id. 21See id. at 781-82. 22See id. at 779-80 (advising against portraying client as a victim). 23Kenneth D. Chestek, The Plot Thickens: Appellate Brief as Story, 14 Legal Writ. 127, 152-53 (2008) (describing strategies for choosing protagonists and antagonists). 24Robbins, supra note 18, at 778 (discussing different types of heroes, from the innocent to the warrior). 25Whitfield v. United States, 2014 WL 4244264 (U.S.), 3-4 (U.S. 2014) (Petitioner’s Brief) (citation omitted). 26See also Oates & Enquist, supra note 14, at § 17.7.6 (discussing “airtime” and detail). 27Hamilton, supra note 9, at 586-87. 28United States v. Stevens, Respondent’s Brief, available at 2009 WL 2191081. 29 Daniel Sockwell, Writing for the iPad Judge, Announcements, Colum. Bus. L. Rev. Online (Jan. 14, 2014) (available at http://cblr.columbia.edu/archives/12940) (last accessed Apr. 13, 2014). 30Id. 31Id.; see also, e.g., Ferris Jabr, The Reading Brain in the Digital Age: The Science of Paper Versus Screens, Scientific American (Apr. 11, 2013), http://www.scientificamerican.com/article.cfm?id=reading-paper-screens (discussing the physical “rhythm” of reading hard-copy text). 32See, e.g., Lynn Bahrych & Marjorie Dick Rombauer, Legal Writing in a Nutshell § 9.5 (3d ed., West 2003).