9.3 SUMMARY OF THE ARGUMENT

The summary of the argument follows the statement of the facts, and it signals an abrupt change. Up until this point, the writer has been describing the case, including its issues, the opinions below, and the facts.

Supreme Court Rule 24.1(h) provides that the brief must include

[a] summary of the argument, suitably paragraphed. The summary should be a clear and concise condensation of the argument made in the body of the brief; mere repetition of the headings under which the argument is arranged is not sufficient.

Only lengthy motion briefs require a summary of the argument, but they are required for almost all appellate briefs. In both motion briefs and appellate briefs, the summary of the argument can play two roles. First, the summary can serve as a roadmap to the argument as a whole. The writer should succinctly state the major arguments relied on in the brief, in the order in which they appear in the argument section. Second, the summary can be used to present a “holistic” picture of the case, focusing more on policy and equity than on black-letter law.

Judge Hamilton notes that the summary of the argument is “significant on several levels”:

First, it is the party’s first opportunity to put a legal gloss on the facts. Second, it is the party’s first opportunity to orient the appellate judges assigned the appeal to the theme of the party’s argument. Third, and most importantly, it serves as the party’s official opening statement, previewing and summarizing the key legal points the party wants to make in the argument component of the brief.²⁷

A good summary should grab the reader’s attention in its opening paragraph. While the statement of facts should open with a somewhat objective statement of what the case is about, the summary of the argument can be more dramatic, identifying the underlying issues that the case presents.

BAD EXAMPLE Section 205(e)(2) of the Federal Alcohol Administrative Act, prohibiting alcohol content disclosure on malt beverage labels, does not violate the Free Speech Clause of the First Amendment.

While this opening is appropriately argumentative, it doesn’t grab the reader’s attention. To create a more dramatic opening, counsel might begin the summary by reminding the reader of the original purpose of § 205(e)(2). The statute was drafted shortly after Prohibition ended; the government was seeking to prevent strength wars among brewers and to prevent beer drinkers from “forum shopping” for the most powerful beer. Counsel for the United States might bring that purpose up to date by opening the summary of the argument like this:

alt=00054.jpg>GOOD EXAMPLE Prohibition is not just a time in history that ended 60 years ago. Every day is the end of Prohibition for someone who reaches the legal drinking age.

You can be both more dramatic and more argumentative in the summary than you can in the fact statement. Miller v. Albright addressed the citizenship of children born outside of the United States to unmarried United States citizens, when only one of the parents was a citizen. The issue was whether a statute could constitutionally distinguish between children of United States citizen fathers and those of United States citizen mothers. An attorney representing Ms. Miller could have opened the summary of the argument by reminding the Court of the harsh reality of the statute’s distinction:

BAD EXAMPLE The issue before this Court is whether Congress may use an irrebuttable gender stereotype to impose an arbitrary time limit on the relationship between a father and his daughter.

This opening is not horrible, but it states the issue objectively when it should be arguing. Lopping off the objective opening and making a flat statement of the writer’s position creates a much more effective opening sentence:

GOOD EXAMPLE Congress may not use an irrebuttable gender stereotype to impose an arbitrary time limit on the relationship between a father and his daughter.

I think of a dramatic opening to the summary of the argument as a “boom” opening, because it is meant to make a “noise” in the reader’s brain to attract attention. I also believe, however, that not every summary needs to have a boom opening. Sometimes, it can be effective to slow things down and to make the reader think for a moment. In United States v. Stevens, for example, the issue was the constitutionality of a federal statute that restricted creation and distribution of certain videos that included depictions of violence between or against animals. The statute was drafted to stop the creation of a category of videos that depicted the murders of puppies and kittens. The statute was challenged as overbroad by Stevens, a filmmaker whose films about pit bulls included some footage of dogfighting, which he opposed.

Stevens could, no doubt, have started his summary of the argument with a boom opening. Instead, he slowed the pace and isolated the disagreement between himself and the government:

This case is not about dogfighting or animal cruelty. The government and Stevens stand together opposing that. The question here is more fundamental: whether the government can send an individual to jail for up to five years just for making films—films that are not obscene, pornographic, inflammatory, defamatory, or even untruthful. They are controversial. But that is supposed to invigorate, not contract, the First Amendment’s protection.²⁸

This opening for the summary is effective because it disarms the emotional arguments that focus on animal cruelty and puts the focus on the less emotional—but equally important— issue of First Amendment guarantees.

Once the writer has written an appropriate opening, it is time to concentrate on the rest of the summary. Many writers clog up the summary of the argument with too much detail. This part of the document is meant to provide a summary. It should focus more on rules and how they apply than on detailed explanations.

In the excerpt below, from the summary of the argument in a petitioner’s brief in Minnesota v. Carter, the author summarized a 30-page argument in two pages. The case had two main points. After introducing those points in the opening paragraph, the writer used one paragraph to lay out the first rule, then two paragraphs to apply it, followed by one paragraph on the second rule, and another paragraph to apply that rule. She ends the summary by telling the Court how she wants it to decide the case:

GOOD EXAMPLE

Respondents did not have a reasonable expectation of privacy when they bagged cocaine in front of a partially covered window in a basement apartment. The Minnesota Supreme Court incorrectly reversed the trial court’s denial of Respondents’ motion to suppress. First, it erroneously ruled that Respondents had a legitimate expectation of privacy while in another’s apartment for the sole purpose of illegally bagging cocaine. Second, it wrongly held that an officer conducted a search when he merely observed criminal activity in plain view from an area outside the apartment’s curtilage.

Note how the writer lays out the two issues that the argument, and thus the summary, will address.

This Court’s Fourth Amendment jurisprudence demonstrates that the Minnesota Supreme Court’s ruling was erroneous. In order to invoke the Fourth Amendment’s protections, an individual must prove that he had a legitimate expectation of privacy. An individual possesses a legitimate expectation of privacy when he demonstrates that he has both a subjective expectation of privacy and an expectation of privacy that society is prepared to view as reasonable.

In this paragraph, the writer lays out the basic rule that governs the first issue, identifying two sub-issues. She does not cite to authority, which is an acceptable convention in the summary of the argument.

Respondents were sitting at an illuminated kitchen table facing a window of a ground-floor apartment and packaging cocaine. Respondents should have realized that a passerby could have looked into the apartment and noticed the illegal activity occurring within the apartment. Thus, Respondents can claim no subjective expectation of privacy.

In this paragraph, the writer connects the facts to her legal conclusion that the Respondents can claim no subjective expectation of privacy.

Additionally, any subjective expectation of privacy Respondents possessed is not one that society is prepared to recognize as reasonable in light of longstanding social customs that serve functions recognized as valuable by society. Minnesota v. Olson, 495 U.S. 91, 96-97 (1990). As non-overnight guests, they lacked the connection with the premises that legitimizes an expectation of privacy. Even if shorter-term guests can claim the protection of the Fourth Amendment, only those short-term guests who are present for socially permissible and valuable reasons qualify for Fourth Amendment protection.

In this paragraph, the writer gives the factual details that show why society is not prepared to recognize Respondents’ expectation of privacy as reasonable. These reasons reflect the organization of her argument.

Furthermore, even assuming that Respondents are entitled to invoke the Fourth Amendment’s protections, no Fourth Amendment search occurred. A search occurs only when governmental agents intrude upon an area in which an individual has a reasonable expectation of privacy. A reasonable expectation of privacy is violated when an officer intrudes upon the home or its curtilage, the area immediately surrounding the home that shares the same private characteristics as the home. Conversely, there is no violation of a reasonable expectation of privacy, and therefore no search, when an officer merely stands outside the curtilage of a residence and observes what is in plain view.

In this paragraph, the writer lays out in detail the rule that governs the second main issue. Again, she does not cite to authority other than the Fourth Amendment.

In this case, the officer stood in a publicly accessible common area outside the apartment’s curtilage. The officer used only his natural senses to observe what was in plain view. He conducted his observation without physical intrusion, without the use of any device, and in a manner that any member of the public could have employed. The officer’s conduct violated no reasonable expectation of privacy and therefore was not a Fourth Amendment search.

In this paragraph, the writer applies the second rule to the facts of the case.

For these reasons, this Court should hold that Respondents had no legitimate expectation of privacy in the apartment and that the observations of the officer did not constitute a search. This Court should reverse the Minnesota Supreme Court’s judgment.

In this paragraph, the writer sums up the two main conclusions as to the issues and connects those conclusions to her assertion that the Court should reverse the decision below.

In most situations, the summary of the argument need not contain numerous citations to authority. Of course, if a case, statute, constitutional provision, or other authority is at issue, it will be mentioned; likewise, if a particular issue is largely controlled by a case or other authority, that authority may be mentioned as well. Usually, however, the focus is on legal principles rather than on the authorities that are the source of those principles.

To summarize, the summary of the argument should (1) signal the writer’s theme, (2) signal the writer’s major arguments and the order in which those arguments will appear, (3) focus on rules and their application rather than detailed explanations, and (4) avoid most citations to authority.