Brief-Writing Masterclass

By Chinua Asuzu

An advocate submits a brief to a court or tribunal to persuade it to decide the cause or matter in favor of the advocates client or position. The key word is persuade. Too often, advocates forget this and write to please themselves. They write to themselves instead of to the court. They write in chest-thumping prose and style. Advocates will do well to keep in mind that in advocacy, persuasion is all that matters.

This book teaches persuasive written advocacy. It shows advocatesof all ranks, in all jurisdictions, in all proceedings, before all courts or tribunalshow to prepare and present winning and winsome arguments. Because of its emphasis on winning, the books pedagogy blends law, linguistics, logic, psychology, rhetoric, and semantics.

• Language: English
• Publisher: Partridge Publishing Africa
• Release date: May 31, 2017
• ISBN: 9781482878011

Chinua Asuzu

Chinua Asuzu is Africa’s leading legal-writing scholar. He’s the plain-language maven whose works include Brief-Writing Masterclass; Fair Hearing in Nigeria; Judicial Writing: A Benchmark for the Bench; and Learned Writing. Chinua is the dean of The Write House, the senior partner of Assizes Lawfirm, a Fellow of the Chartered Institute of Taxation of Nigeria, a Fellow of the Society for Advanced Legal Studies, and a member of the Commonwealth Association of Legislative Counsel. A jurisprudent, Chinua teaches legal writing at law firms and law schools, and at private and public forums. Chinua’s expertise spans the gamut of legal writing: academic legal writing, brief-writing, business writing, contract drafting, judicial writing, legislative drafting, and litigation drafting. An upwrite and writeous autodidact, Chinua is all write.

Book preview

Copyright © 2017 by Chinua Asuzu.

Back-cover design: Michael Igweobi, Grafix Direction Services.

ISBN:                Hardcover                978-1-4828-7800-4

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Contents

Table of Cases

Preface & Acknowledgments

Abbreviations

1 The Architecture of Argument

1.1 Brief Etymology and Changing Meaning of ‘Brief’

1.2 Cover Page and Contents

1.3 Issues for Determination

1.4 The Introduction

1.5 Facts and Procedural History

1.6 The Argument Section

1.7 Conclusion

1.8 List of Authorities

2 Issues for Determination

2.1 What’s an issue for determination? Apply the lay-friend test.

2.2 Place your issues up front.

2.3 To formulate an issue, find governing law and isolate legally significant facts.

2.4 Winnow and prioritize your issues.

2.5 Devote time and effort to formulating your issues.

2.6 Learn the methods of drafting issues. Then unlearn most of them.

2.6.1 The whether fragment

2.6.2 The one-sentence statement

2.6.3 The one-sentence question

2.6.4 The Catholic catechism

2.6.5 The under-does-when formula

2.6.6 The deep-issue format

2.7 Use deductive logic to elicit doctrinal holding.

2.8 Forget circumstances of this case.

2.9 Prefer legal to procedural juxtapositions.

2.10 Craft issues to steer the court your way.

2.11 Leave the lower court and other parties out of it.

2.12 Phrase your issues like questions.

3 Facts and Procedural History

3.1 You can use topical headings.

3.2 Tell a story with your facts.

3.3 Your narrative should transcend mere storytelling.

3.4 Invest your story with a theme.

3.5 Stress your client’s perspective.

3.6 Let the facts tell the story—don’t interpret, don’t interrupt.

3.7 Shun the dating maze and other data mess.

3.8 Call parties and witnesses their names.

3.9 Assign substantive descriptions to your data and documents.

3.10 Fit facts to law.

3.11 Deploy characterization for persuasive effect.

3.11.1 Characterization could be constructive or destructive.

3.11.2 Direct negation is not characterization.

3.12 Appeal to the court’s conscience.

3.13 Appeal to the court’s emotion.

3.14 Tell your facts differently than in other documents.

3.15 Remember that the facts control the law.

3.16 Think like a novelist—borrow fiction elements.

3.16.1 Character—make your client likable.

3.16.2 Conflict—characterize the conflict with thematic undertones.

3.16.3 Resolution—prophesy a happy ending.

3.16.4 Organization—provide context before detail.

3.16.5 Point of view—choose a client-centered perspective.

3.17 Deal with bad facts—play safely with fire.

3.18 Include a procedural history when warranted.

4 The Argument Section

PART A– Organization, Structure, and Posture

4.1 Organize for persuasive flow. Accentuate point headings.

4.2 Use outlines and point headings for rhetorical advantage.

4.3 Erect signposts along the way.

4.4 Boost organization with roadmaps.

4.5 Push both justifying and motivating arguments

4.6 Learn to structure your argument on each issue.

4.7 Should you get your Foot in their Door (FITD) or slam your Door in their Face (DITF)?

4.8 Winnow and prioritize your arguments.

4.9 Use thesis sentences to reinforce rhetorical narration.

4.10 Use transition, bridging, and paragraphing to boost linguistic coherence.

4.11 Use exquisite civility to boost ethos.

4.12 Present your case as representing good law or sound policy. Save judicial labor. Apply social science.

4.13 Drop the digest and record methods of argument. And quarantine the plague of false ratios.

4.14 Choose a structural formula for your argumentation.

PART B– Rebuttal and Refutation

4.15 Plot your offensive and defensive gambits.

4.16 Enclose refutation in a halo of affirmative arguments.

4.17 Push anticipatory refutation to make your case complete.

4.18 Plot recharacterization, negative imagery, and similar gambits.

4.19 Strategize with candid or zealous advocacy.

PART C– Citations and Quotations

4.20 Minimize citations and quotations. Scrutinize your authorities and isolate their rationes decidendi.

4.21 Know your best precedents.

4.22 Follow hierarchy in citing authorities. And prioritize primary over secondary authority.

4.23 Use explanatory synthesis.

4.24 Avoid ‘talking footnotes.’ Banish bibliographic algebra to footnotes.

4.25 Nurture the pinciting habit.

4.26 Pack your rhetorical punch with parentheticals.

4.27 Maximize citation clauses, citation sentences, and introductory signals. Minimize string citations. Starve bare cites.

5 Think before you write

5.1 Believe in your client’s cause—formulate a thesis for every case.

5.2 Draft issues and point headings early.

5.3 Try the Flowers paradigm.

6 Case Theory, Themes, and Priming

6.1 Your theory of the case should convert the facts of the dispute into a legal problem soluble in your client’s favor.

6.2 Your theme should supply moral justification for the victory you prophesy.

6.3 Your theme should possess narrative fidelity.

6.4 Your theme should leave an impression about the case.

6.5 Your theme should evoke emotions.

6.6 Your theme should prime the judge to view the case your way.

6.7 Your theory of an appeal should show the presence, or absence, of reversible error, as well as injustice, below.

7 Rhetoric and the Rhetorical Triangle

7.1 Why study rhetoric?

7.2 To exercise your rhetorical skills, you need a rhetorical situation.

7.3 To influence the rhetorical situation, deploy framing devices.

7.4 To wage all-out forensic battle, fight on all three fronts of the Rhetorical Triangle.

7.4.1 Ethos

7.4.2 Logos

7.4.3 Pathos

8 Logic and Logical Fallacies

8.1 Introduction to logic

8.2 Logical Fallacies

8.2.1 Argumentum ad baculum

8.2.2 Argumentum ad misericordiam

8.2.3 Argumentum ad hominem

8.2.4 Dicto Simpliciter

8.2.5 Ignoratio Elenchi

8.2.6 Red Herring

8.2.7 The Straw Man

8.2.8 Argumentum ad ignorantiam

8.2.9 Argumentum ad verecundiam

8.2.10 Argumentum ad antiquitam

8.2.11 Hasty Generalization

8.2.12 Slippery Slope

8.2.13 False Cause

8.2.14 Amphiboly

8.2.15 Equivocation

8.2.16 Composition

8.2.17 Division

8.2.18 Petitio Principii

8.2.19 Complex Question

8.2.20 Suppressed Evidence

8.2.21 False Dichotomy

8.2.22 Inverse Error (or Denying the Antecedent)

8.2.23 Converse Error (or Affirming the Consequent)

8.2.24 Faulty Analogy

8.2.25 Half-Truth

Bibliography

This work is for the

Nigerian Bar Association

Learned Friends

Let’s serve our clients with courage and courtesy

Let’s do our work with civilization and sensitivity

Let’s work for our clients, not for ourselves

Let’s be exemplary citizens

Table of Cases

• Adelumola [1988] 1 NWLR (Part 73) 683 (SC).

• Adewusi v Popoola [1998] 12 NWLR (Part 579) 579 (CA).

• Agidigbi v Agidigbi [1996] 6 NWLR (Part 454) 300 (SC).

• Ake v Oklahoma 470 US 68 (1985) (USSC).

• Ajomale v Yaduat (No. 2) [1991] 5 NWLR (Part 191) 266 (SC).

• American International School v FIRS [1922-2015] 11 All NTC 255 (TAT).

• Angyu v Malami [1992] 9 NWLR (Part 264) 242 (CA).

• Anie v Uzorka [1993] 8 NWLR (Part 309) 1 (SC).

• Anyaoke v Adi [1985] 1 NWLR (Part 2) 342 (SC).

• Asogwa v Chukwu [2003] 4 NWLR (Part 811) 540 (CA).

• Babalola v Obaoku-Ote [2005] 8 NWLR (Part 927) 386 (CA).

• Braithwaite v Dalhatu [2016] 13 NWLR (Part 1528) 32 (SC).

• Bulbank v AI Trade Finance, Case T-6111-98.

• Bwai v UBA [2002] 4 NWLR (Part 758) 692 (CA).

• Cape Brandy Syndicate v Inland Revenue Commissioners (1921) 2 KB 403 (CA-E).

• Cargill v Bower [1870] 10 Ch. D. 502.

• Chevron v Omoregha [2015] 16 NWLR (Part 1485) 336 (CA).

• Coleman v Court of Appeals of Maryland 566 US (2012) (USSC).

• Daniel v Iroeri [1985] 1 NWLR (Part 3) 541 (SC).

• Dibie [2007] 9 NWLR (Part 1038) 30 (SC).

• Donoghue v Stevenson [1932] AC 562 (HL).

• Egbe v Adefarasin [1985] 1 NWLR (Part 3) 549 (SC).

• Egbe v Alhaji [1990] 1 NWLR (Part 128) 546 (SC).

• Egharevba Oruonghae [2001] 11 NWLR (Part 724) 318 (CA).

• Engineering Enterprises of Niger Construction Company of Nigeria v AG of Kaduna State [1987] 2 NWLR (Part 57) 381 (SC).

• Essien v Commissioner of Police [1996] 5 NWLR (Part 449) 489 (CA).

• Esso v Plowman [1995] 128 ALR 931).

• Ezenwa v Mazeli & Ors. [1955] 15 WACA 67.

• Fabunmi v Agbe [1985] 1 NWLR (Part 2) 299 (SC).

• Fatai [2013] 10 NWLR (Part 1361) 1 (SC).

• Grant v Australian Knitting Mills [1936] AC 562 (PC).

• Haupt v United States 330 US 631 (1947) (USSC).

• Hedley Byrne v Heller & Partners [1964] AC 465.

• Henderson v Ford Motor Co. 519 SW 2d 87 (Texas 1974).

• Imade v Otabor [1998] 4 NWLR (Part 544) 20 (SC).

• Imonikhe v Attorney General of Bendel State [1992] 6 NWLR (Part 248) 396 (SC).

• Inland Revenue Commissioners v Duke of Westminster 1936 19 TC 510; [1935] All ER 259 (H.L.); [1936] AC 1 (HL).

• Jammal Steel Structures Ltd v ACB Ltd [1973] All NLR 852 (SC).

• Jungwirth v Jungwirth 240 P. 222, 223 (Or. 1925); 115 Or. 668, 240 Pac. 222 (1925).

• Lawal-Osula v Lawal-Osula [1995] 9 NWLR (Part 419) 259 (SC).

• Levicom v Linklaters [2009] EWHC 1334; [2010] EWCA Civ. 494.

• Levicom v Linklaters [2010] EWCA Civ. 494.

• Mabamije v Otto [2016] 13 NWLR (Part 1529) 171 (SC).

• M & M Metals International Inc v Continental Casualty Company 870 N.E.2d 167 (Ohio Court of Appeal 2006).

• McNeely 925 SW 2d 177 (1996) (USSC).

• Miller v Alabama, 567 US 2455 (2012) (USSC).

• Mobil Producing Nigeria v FIRS [1922-2014] 8 All NTC 397 (TAT).

• Muller v Oregon 208 US 412 (1908) (USSC).

• Mustapha [2007] 12 NWLR (Part 1049) 637 (CA).

• Mylward v Welden (1596) 21 Eng Rep 136 (Ch).

• National Federation of Independent Business v Sebelius, 567 US 2566 (2012) (USSC).

• Nigerian National Petroleum Corporation v CNOOC Exploration and Production Nig. Ltd [2015] 20. TLRN 17 (FHC).

• Obidigbo v Obiano [2015] 1 NWLR (Part 1441) 471 (CA).

• Odutola v Lawal [2002] 1 NWLR (Part 749) 633 (CA).

• Oko v Igweshi [1997] 4 NWLR (Part 497) 48 (CA).

• Okongwu v NNPC [1989] 4 NWLR (Part 115) 296 (SC).

• Okpala v Ibeme [1989] 2 NWLR (Part 102) 208 (SC).

• Olaniyan v Adeniyi [2007] 3 NWLR (Part 1020) 1 (CA).

• Oyadeji v Adenle [1993] 9 NWLR (Part 316) 224 (CA).

• Rogers, Estate of v Commissioner of Internal Revenue, 320 US 410 (1943).

• Salazar v Ramah Navajo Chapter 567 US 2181 (2012) (USSC).

• Shaban, in re Marriage of, 105 Cal. Rptr. 2d 863 (Ct. App. 4th Dist. 2001).

• Shell Petroleum Development Company v FBIR [1996] 8 NWLR (Part 466) 256 (SC).

• Simpson, Los Angeles County Superior Court, 3 Oct. 1995 (Lance Ito J).

• Spaziano v Singletary 36 F. 3d 1028 (11th Circuit 1994).

• Ugo v Obiekwe [1989] 1 NWLR (Part 99) 566 (SC).

• United States v Panhandle Eastern Corp 118 FRD 346.

• Universal Vulcanizing (Nig.) Ltd v Ijesha United Trading & Transport Co. Ltd. [1992] 9 NWLR (Part 266) 388 (SC).

• UTC v Pamotei [1989] 2 NWLR (Part 103) 244 (SC).

• Uwaifo v Uwaifo [2013] 10 NWLR (Part 1361) 185 (SC).

• Wilkinson v Downton [1897] 2 QB 57.

• Williams v Illinois, 567 US 2221 (2012) (USSC).

Preface & Acknowledgments

My goal in writing this book is to share with my learned friends the lessons I’ve been learning about how to prepare and present winning and winsome arguments. I believe the book will benefit all advocates—of all ranks, in all jurisdictions, in all proceedings, before all courts or tribunals. The book’s pedagogy blends law, logic, psychology, and rhetoric.

Gerry Spence is probably the most successful advocate in history. He has never lost a criminal case, whether for the prosecution or for the defense (and he has done plenty of both). He has not lost a civil case since 1969. I have learned a lot from Spence’s life and work.

I hail Ben Nwabueze for his inspiration and scholarly leadership. Nwabueze is the undisputed heavyweight champion of constitutional jurisprudence and the best Chief Justice Nigeria never had.

I thank my dedicated, diligent, and indefatigable partners at Assizes Lawfirm and The Write House—Kome Oruade and Ololade Olukowi—for editing and proofreading the manuscript. Our IP & IT Consultant, Senator Iyere Ihenyen, contributed immensely to the editing process. Our learned colleague, Esohe Okoromi, blessed with acuity of vision, spent weeks combing the manuscript. All these people—Kome, Ololade, Senator, and Esohe—are brilliant lawyers. After all the excellent work they did to rid the manuscript of errors, some errors inevitably remained. It was then left to Elo Oruade to apply her innate editorial instinct in getting rid of these stubborn errors. Elo did a splendid job.

If any errors remain, I alone am to blame.

Abbreviations

ABA– American Bar Association

ADR– Alternative Dispute Resolution

All NTC– All Nigerian Tax Cases

Art.– Article

CA– Court of Appeal (Nigeria)

CA-E– Court of Appeal (England)

CEO– Chief Executive Officer

CFO– Chief Financial Officer

CLDS– Commercial Law Development Services

C4LDS– Centre for Law & Development Studies

COO– Chief Operating Officer

EWCA– Court of Appeal of England and Wales (law reports)

EWHC– High Court of England and Wales (law reports)

FBIR– Federal Board of Inland Revenue

FIRS– Federal Inland Revenue Service

ISBN– International Standard Book Number

Iss.– Issue

HL– House of Lords

J– Judge or Justice

JCA– Justice of the Court of Appeal (Nigeria)

JSC– Justice of the Supreme Court (Nigeria)

NITA– National Institute for Trial Advocacy [US]

NNPC– Nigerian National Petroleum Corporation

NWLR– Nigerian Weekly Law Reports

NYSBA– New York State Bar Association

OSCOLA– Oxford University Standard for the Citation of Legal Authorities

OUP– Oxford University Press

PC– (Judicial Committee of the) Privy Council

QC– Queen’s Counsel

SAN– Senior Advocate of Nigeria

SC– Supreme Court (of Nigeria)

TAT– Tax Appeal Tribunal

USSC– United States Supreme Court

1

The Architecture of Argument

1.1. Brief Etymology and Changing Meaning of ‘Brief’

1.2. Cover Page and Contents

1.3. Issues for Determination

1.4. Introduction

1.5. Facts and Procedural History

1.6. The Argument Section

1.7. Conclusion

1.8. List of Authorities

1.1 Brief Etymology and Changing Meaning of ‘Brief’

Traditionally, in the advocacy context, the word brief means written argument submitted to an appellate court. This nomenclature is historically based. When written arguments were first required or even desired at all in litigation, they were restricted to ultimate courts—there, they’re called ‘briefs.’ Then they were extended to intermediate appellate courts—here, they’re called ‘briefs.’ It took decades after their introduction to ultimate and appellate courts for written arguments to be required or welcomed at trial courts. Here, they got an unnecessarily differentiated name—written addresses or written submissions, if interlocutory; and final (written) addresses if terminal.

Join me in dropping this linguistic differentiation. Let’s assign the name of brief to all written arguments submitted to a court or tribunal, in interim, interlocutory, or substantive proceedings, at first instance or on appeal. Let’s have not only appellate briefs, but also ADR briefs, motion briefs, and trial briefs. Your written addresses or written submissions in aid of applications to courts become motion briefs; and your final (written) addresses become trial briefs. Appellate briefs include the appellant’s brief of argument, the respondent’s brief of argument, and the reply brief. The first two are self-explanatory.

The last, the reply brief, is filed by the appellant when, upon service of the respondent’s brief, the appellant feels the respondent’s brief has raised new points requiring the appellant’s reaction. So the reply brief is analogous to what we Nigerian lawyers call a reply on points of law in our motion practice. A reply brief enables the appellant to articulate … arguments on some new issues arising from the respondent’s brief. A reply brief should not be used to strengthen or repeat the arguments already canvassed in the appellant’s brief nor should it be a reiteration of [those] arguments.¹ When the respondent’s brief raises no new issues, a reply brief is unnecessary and undesirable. A reply brief should not itself introduce any new issues. Indeed, it should raise no issues.² A reply brief, as the name implies, must be a reply to the respondent’s brief. … A reply brief is not a forum for introducing or advancing fresh points …. A reply brief must not contain … issues for determination. A reply brief must not be independent of the main brief.³ A reply brief is unpopular with judges. A prudent advocate will therefore hesitate to file one.

An appellate brief aims to persuade the appellate court to uphold or reverse the decision of the [lower] court.⁴ Each party’s brief presents the issues from that party’s perspective.⁵

An advocate submits a brief to a court or tribunal to persuade it to decide the cause or matter in favor of the advocate’s client or position. The key word is persuade. Too often, advocates forget this and write to please themselves. They write to themselves instead of to the court. They write in chest-thumping prose and style. Advocates will do well to keep in mind that in advocacy, persuasion is all that matters. Persuasion, not scholarship, is the test of successful advocacy. Persuasion is the only test that counts. Literary style, massive displays of scholarship, citations that thunder from the ages, and catchy phrases are uniformly pointless if the writing does not persuade.⁶ Scholarship is great, but its value in advocacy is as an aid to persuasion.

Content is not all there is to persuasion. Form is vital. An essential element of form is organization or structure. You want to arrange your brief in as appealing a form as possible. You want to organize its contents to capture judicial attention and arrest judicial imagination.

Here I list the components of a brief in the order in which you should organize them to maximize your brief’s persuasive potential on the form index:

• Cover Page and Contents

• Issues for Determination

• Introduction

• Facts and Procedural History

• The Argument

• Conclusion

• List of Authorities

1.2 Cover Page and Contents

Your brief should have a cover page, one not cluttered with detail. On the cover page, state the following:

• the name and division of the court (recommended point size 14: regular—ALL CAPS, centered, no boldface, no italics, no underlining);

• the appeal, docket, file, or suit number (recommended point size 10: regular—right-aligned, no boldface, no all caps, no italics, no underlining);

• the names of the parties (recommended point size 14: regular—left-aligned {with their procedural designations right-aligned}, no boldface, no all caps, no italics, no underlining);

• a descriptive title for the brief (recommended point size 16: boldface—centered, no all caps, no italics, no underlining); and

• your name, law firm, and contact information at the bottom right corner of the cover page (recommended point size 10: regular—right-aligned, no boldface, no all caps, no italics, no underlining).

The name and division of the court, centered in the usual format shown below, should be the only all-caps text in the whole brief.

IN THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

SITTING AT IKEJA

Nothing in your whole document should be underlined.

The brief’s title should be the most prominent information, in point size 16, and bold, but not all caps. Nothing else on the cover page should be bold. Nothing else should be larger than point size 14. The title should stand out in contrast to the rest of the information on the cover page. The title is the information the judge needs. The document is already inside a case-file, so the judge knows which case he or she is dealing with.

In the body of your brief, prefer point size 14. You should retain this point size even for headings and subheadings inside your brief. Use boldface font, not size, to emphasize your headings. But if you really want to contrast main headings from subheadings, you may use point size 14.5 for main headings and 14 for subheadings and the rest of your text.

Use title case (initial caps for the main words) for the brief’s title. The title should state whose brief it is and what it relates to. If it’s a trial brief, you need not specify what it relates to other than stating that it’s your client’s final address. Give as much detail as necessary in the title when it relates to a motion brief.

Don’t use Arial, Baskerville, Bookman Old Style, Calibri, Cambria, Courier New, Tahoma, or Times New Roman in your legal writing. Why not? Thanks for asking. Well, Matthew Butterick, learned typographer, doesn’t like them.⁷ Consider Book Antiqua, Century Schoolbook, Garamond, Gill Sans, and Helvetica. Butterick might tolerate those. Browse www.typographyforlawyers.com.

If your court rules insist on different fonts or point sizes, by all means follow your court rules and ignore my recommendations.

As soon as the judges buy into this (I’m talking to them already), or if you’re bold, cold, gold, or old, add parties’ names to their procedural designations like Appellant, Applicant, Claimant, Defendant, Petitioner, or Respondent. Then here’s how you should state the brief’s title on the cover page:

Claimant Prana’s Brief on Defendant Quixote’s Preliminary Objection

Claimant Chevron’s Final Address

Defendant Dangote’s Brief on Claimant Zingam’s Application for Mandatory Injunction

Judgment Debtor Bosco’s Brief on its Application for Stay of Execution

Appellant Eleganza’s Brief

Respondent Swift Network’s Brief

Appellant Sheraton’s Reply Brief

Never confuse a reply brief with a respondent’s brief. On appeal, the respondent files the respondent’s brief after receiving the appellant’s brief. A reply brief is filed by the side that served the opening brief. On appeal, the appellant files the reply brief, if necessary, after receiving the respondent’s brief. At trial, whichever side filed the opening brief may file a reply brief after receiving the other side’s brief. A reply brief is analogous to a reply on points of law in interlocutory contexts.

Of course, the cover page should not be numbered or paginated. The cover page should be followed by the table of contents, which may run into two, three, or even more pages, depending on the nature or complexity of your argument. Detailed tables of contents, with headings and subheadings, are always helpful. Persuasion starts from the table of contents. The table of contents tells the judge how serious and diligent an advocate you are. Paginate the table of contents in romanettes (lowercase Roman numerals): i, ii, iii, iv, etc, to contrast its pagination from the pagination of the substantive brief, which should be in Arabic numerals (1, 2, 3, 4, etc).

Your table of contents should do the following:

• list all the brief’s components;

• include the point headings and subheadings you’ll use in the argument section; and

• index its entries—point to the pages on which each begins.

A table of contents with argument-section headings and subheadings provides a coherent and persuasive outline of the argument and enables the reader to gain a grasp of the case theory.⁸ Title the table of contents Contents, not Table of Contents.

How do you prepare the table of contents? As you research and prepare to write a brief, note points you will need to make. List helpful authorities. Note good quotes you want to use. Then organize your notes. From those notes, draw up an outline. Preparing an outline is the single best thing you can do to improve your written work. Not only does outlining help you get something on paper, but it also forces you to organize your thinking.⁹ Translate your outline into a fairly detailed table of contents. Your table of contents should show the major parts as well as the subparts of your brief, with appropriate headings and subheadings. Your argument section, in particular, should have subheadings (your point headings). Each point heading should deal with one major point in your brief, one main plank of your argument, or one issue. When your brief has a table of contents with point headings inserted under the argument section, you give the judge an early overview of the nature and direction of your legal argument.¹⁰

Your table of contents should feature, as its first entry, the Issues for Determination. Unless you have just one issue, this should be broken down into subparts, each dealing with one issue—summarize the questions for determination in subheadings, preferably in question format. Follow the Issues for Determination with your Introduction. After the Introduction comes Facts, Procedural History, or Facts and Procedural History. Feel free to combine the facts section and procedural history when either is too short to merit a separate section. Sometimes the procedural history can be taken care of in one or two sentences. At other times, there may be few facts deserving narration, for example in briefs turning purely on law or procedure. When you combine the facts section with the procedural background, title it Facts and Procedural History. When you omit either entirely, title the surviving section Facts or Procedural History, as necessary. Next comes the Argument. The last substantive part of your table is the Conclusion. Then you close the table with a List of Authorities.

The table of contents is important for two reasons: (1) because it incorporates argument-section point headings, it provides an overview of and a roadmap to the whole argument; and (2) because it is indexed, it guides the court to specific parts of the brief as needed during decision-drafting.¹¹ Your outlining and subdivision of the argument section should show the judge, vividly and memorably, the points you have to make.¹² That’s why your table of contents should not stop at displaying the major sections of your brief, but should also outline your subdivision of the argument section into subheadings. Indeed, this is the critical phase of your outlining—it is in the argument section that you apply creativity and advocacy in planning and presentation.

Your point headings (and perhaps subheadings) under the argument part of the table of contents should preview for the court the persuasive reasons behind your main points and help the court later use the table to find key supporting arguments.¹³ This means that your table of contents, especially the part dealing with the argument, should be somewhat detailed. But your table should not be so detailed as to run into many pages, else the court will get the impression that your argument is complicated. An overly long and excessively detailed table, with many sub-topics and sub-sub-topics, will undermine persuasive potential. You will be more persuasive if your organization gives the court the impression that your argument is simple or straightforward. Four pages are not too long for a table of contents. If indeed the case is complicated, don’t be afraid to reflect this in your outlining, which may legitimately take the table to five or more pages. This should be a rare case, and one in which your opponent and the judge would readily see that the case is indeed complicated.

Busy judges appreciate detailed tables of contents. Your table’s argument section should reveal the full argument, assertion by assertion. Your brief will become more skimmable. And in the weary eyes of a busy judge, that means a lot.¹⁴ The author of those words is a busy judge himself. Detailed tables of contents help not only the judicial reader but also you, the author. They help you maintain focus and keep your goals in sight throughout the drafting process.¹⁵ This means that, ideally, you should prepare the table of contents before you start writing. This makes sense. During research and preparation, you should discern the main points of your argument before you begin to develop them. As you research and write, you may need to modify the table. You may expand it as more points spring to mind or are dictated by your research findings. You should discard weak points. For your major points, use complete-sentence point headings in sentence-case boldface, single-spaced. Each of your point headings should be at most 35 words in length.

Your table of contents should be a vision of clarity. It should be indexed—that is, it should point to the pages on which the listed contents occur. Your table of contents will look like this:

1. Issues for Determination

1.1 Summary of first issue in question format (e.g., Is this claim statute-barred?)

1.2 Summary of second issue in question format.

2. 2. Introduction

3. 3. Facts (and Procedural History)

4. 4. The Argument

4.1 Point heading answering first issue, possibly with sub-points (This claim is statute barred because …).

4.2 Point heading addressing second issue.

5. Conclusion

• List of authorities

This is of course a general guide. Prefer this guide to your court rules if they differ from this guide—the judge won’t mind. This is a close-enough approximation to any court rules and meets rhetorical expectations. Court rules on briefs are general guides to the structural organization of briefs. As an advocate, you must decide the most persuasive organization for each brief, and I think you should follow this book. Knowing what the courts expect, as in the above guide and in court rules, helps you adopt a sensible structure. Some briefs may need little procedural history. Others may thrive without facts sections—briefs anchored on pure law require little factual narrative.

1.3 Issues for Determination

This should be the first substantive entry, right after the table of contents. I respect, but differ from, other legal-writing authorities who prefer the apparent logic of beginning with an introduction. The issues for determination should come first because they provide the reader with a prism through which to view everything else, including the introduction. (Remember that your introduction is not merely prefatory—courts don’t have time for throat-clearing front matter.) The rest of the brief should be read in the context of the issues. The issues provide[] the lens through which the judge-reader filters the rest of the brief.¹⁶ When judicial readers know up front what questions the court has to confront, they will be able to assess and prioritize all the following material, including the introduction.

Issues determine what facts to include and what law to argue. Stating the issues first enables you to choose and focus your facts and your legal argument in the rest of the brief. Before you start proposing answers for the court to adopt, you must pose the questions. Proposing answers for judicial adoption is what you’re doing in the argument section principally, but really that’s what you’re doing in the whole brief after the issues. Posing the questions to which those answers pertain is what you’re doing in your issue formulation. Questions should come before answers. Stating the issues first helps you as an advocate stay focused, and enables the judicial reader to follow and assess the rest of the brief for correctness, pertinence, and utility (including decisional and, in appropriate contexts, precedential, utility).

Emulate practice before the US Supreme Court: The first page of every legal brief submitted to the [US Supreme] Court consists of one thing: the question presented.¹⁷ What we call issues for determination in this blessed jurisdiction, our American colleagues call questions presented.

Chapter 2 below is a detailed treatment of issue formulation.

1.4 The Introduction

Your introduction should reinforce the road-mapping in the table of contents. The table of contents sets the stage; the introduction begins the drama. The table of contents summarizes the brief in sharp relief; the introduction summarizes it in narrative. Any piece of writing longer than a few pages, especially if the work is expository, will profit from an introduction that summarizes its key contents.

Begin your introduction with the who, the when, the where, the how, and the why: one or two paragraphs that tell the court "who the parties are; when, where, and how the dispute arose; what question the litigation seeks to answer; and why your client is in the right."¹⁸ The what variable of this Guberman equation means that you can allude to the issues. Because you have already stated the issues in a previous section, you should draft your introduction in narrative that evokes, rather than announces, the issues. (Don’t repeat your issue statement here in terms, not even in lamely modified prose.) Your allusion or evocation need not relate to all your issues—one or two will suffice. If your case has a main doctrinal or policy thrust, that alone should suffice as the issue-allusion component of the introduction.

Your introduction should summarize the whole document, not just the argument. It should tell the whole story and give the complete picture, in précis form. Think of your introduction as the executive summary of your brief. It should tell the court enough facts, law, and argument [to] convince the judge that your client should prevail.¹⁹ But the dominant component of the introduction should be the summary of your argument. After all, the argument is the dominant part of your brief, in the typical case, at any rate. So a fair allocation of resources will devote most of the introduction to summarizing the argument. Judges appreciate getting a summary of the argument up front, before delving into the details. Some US court rules actually require or welcome a separate Summary of the Argument section in briefs. Your introduction should explain your argument ‘in a nutshell,’ in order to give the judge context for what will follow.²⁰

A good introduction is neither the largely irrelevant chronology nor the data-heavy procedural history seen too often in litigation drafting. A good introduction is neither formulaic nor generic. A good introduction is concise, concrete, direct, engaging, imaginative, stimulating, and specific; in appropriate cases, it can be colorful or subtle; in all cases, it tackles the core of the dispute. A good introduction is not a preface or a foreword. Your introduction has persuasive value and is not a merely dogmatic requisite in structuring briefs. Exploit the opportunity of an introduction for maximum forensic benefit, not just to fulfill all righteousness. Judges are always fantasizing about having to read less lawyerly dreck—they dream of being rescued from jargon and verbosity. If they can get the whole picture on one or two pages, they will be grateful. Then they can look back at the table of contents to decide which portions to study further. The worst-kept secret in judicial work is that judges don’t read every word advocates write.

Ideally, you should present your introduction in refreshing narrative prose. Capture judicial attention from the first line: Come out swinging; dazzle the reader if you can.²¹ Dwell on your point of view. Present your points in assertive or conclusory language. Avoid or minimize the following: argumentative phrasing; citations and quotations; references to the record, evidence, or witnesses; and references to pleadings or other documents.

Make your introduction easy on the eye. Make it short—under 300 words typically. Cite few, if any, authorities in your introduction, and weave any citations into your prose so deftly as not to upset felicity or fluidity.

While all your writing should be clear and simple, your introduction should be exceptionally lucid. It is an early opportunity for persuasion. Plain, readable prose will make the reader go on reading; difficult language will tempt the reader to lay aside your brief for later. What isn’t read doesn’t persuade. The reader who enjoys your introduction is already getting ready to be persuaded. You’ve got your foot in the door. To inveigle your foot into the other room, include in your introduction some non-controversial points about which the judge needs no further learning. No rules require you to bore the judge to tears, and no rules forbid originality.²² [I]t is not unconstitutional to be interesting.²³

In a motion brief (written address in aid of an application—adapt this piece of advice to other kinds of brief), write your introduction to "grab the court’s attention and try to win the motion in the introduction. … You must place your best facts and the best points of your legal argument before the judge as soon as you can."²⁴ Your communicative objective in a motion brief when you are for the applicant is to show why the application is necessary and why your client prevails. When you’re for the respondent, it is to show that the application is improper (because it’s scandalous, unnecessary, untimely, or vexatious), or, even if it’s proper, why you prevail regardless.²⁵

Your motion brief’s introduction (which should not exceed one page) should include "background facts necessary to understand the parties’ positions; the current events, transactions, and occurrences that lead up to the case and motion at hand, and a sense of the theme of the case and of the motion."²⁶ Write an introduction that accentuates your client’s perspective and theme. Never write a neutral introduction.

Your introduction should include a theme for the motion, and perhaps a theme for the substantive case. A single sentence that sums up the client’s position on the merits and that will resonate with the court should effectively capture your theme.²⁷ Your theme should enable the court understand the case in a light that favors your client. Develop your motion briefs to belong snugly with the jurisprudential and moral architecture of the substantive case.

1.5 Facts and Procedural History

The facts of the case include the transactions that comprise the dispute, along with those transactions’ backgrounds, causes, and nuances. The facts of a case consist of every material event in the life of the dispute before somebody sued. The procedural history starts from the moment somebody sued—from the filing of the first document in the case. The procedural history includes all filings and proceedings up to the brief you are writing. The procedural history is the drama in court whose opening act is the writ or similar originating document. The procedural history includes affidavits, applications, depositions, hearings, and evidence.

Chapter 3 below treats facts and procedural history.

1.6 The Argument Section

The argument section follows the factual and procedural narrative. The facts determine what law is relevant, and the argument section is made up mostly of law and policy as applied to the facts of the case. So the reader must first be exposed to the facts. Then he or she can appreciate the following argument and assess its application to the facts. For a detailed treatment of the argument section, see chapter 4 below.

1.7 Conclusion

Here, you should recap the high points, not all the points, of your case. Explain clearly why [your] version of the case is the only one a reasonable person could accept.²⁸ From the table of contents to the argument, you are working to establish and justify your conclusion.²⁹ You should be setting the stage for logical premises to justify the suggested conclusion.³⁰ Your conclusion should read like the only valid result of the preceding material. "Make the route by which you guide the tribunal home [to your conclusion] irresistible. … Always, always, always look for a quality of irresistibility in your arguments. It is the hallmark of a truly great advocate."³¹ Don’t be too modest in your conclusion—by the time you get there, you should have earned the right to certitude.

Endow your conclusion with a difficult-to-resist rhetorical fit with the rest of the material. Dignify it with majestic prose. A good conclusion should be a dignified review of the main contention in order to emphasize such phrases as would otherwise fail to occupy the attention of the court in the proper and merited proportions.³² Note the phrase the main contention. You don’t have to list all your contentions unless your court rules insist, in which case you emphasize the main contention.

The conclusion is where you sound like an oracular minister in the temple of justice. You could write your conclusion by capsulizing the several reasons the court should go along with you. Never write for the foregoing reasons …; repeat the most important of those reasons, in summary and thematically. Forcefully and concisely refine your argument.

Provide a summary of your main arguments and say why you should win. Tell the court how it should deal with the issues. Specify precisely how you want the court to decide the case.

The purpose of an appellate brief is to persuade the appellate court to affirm, reverse, or vacate the lower court’s judgment or order. In appellate briefs, also state whether the trial court or the intermediate appellate court made a correct or an incorrect decision—whether the appellate court should reverse or affirm the decision.³³ This is the place to criticize a lower court, not in the issue statement.

In Haupt v United States,³⁴ the winning brief concluded with this passage:

Petitioner was convicted of treason after a sober, careful, and eminently fair trial, on the basis of evidence clearly establishing by the required two witnesses a number of legally sufficient overt acts of aid and comfort to the enemy, and clearly showing intent to betray. Reversal of the judgment below can be supported only by artificial refinements and technicalities that find no support in the treason clause of the Constitution. We therefore respectfully submit that the judgment below should be affirmed.

The Haupt-brief conclusion is excellent. It represents a thematic summary of the brief. It reminds the US Supreme Court of the soundness of the judgment below, pointing out, without citations and in a clean narrative line, the requisites of the crime charged and how they were met. It subtly but fatally condemns any contrary characterization, without expressly citing the opposite party. It ends with a request for a relief that by now appears the only just, right, and proper thing for the court to do. (In the result, the Supreme Court affirmed the judgment of guilt by a majority, Murphy J. dissenting.)

An alternative way of writing your conclusion is to find a different slant or angle on the dispositive arguments. With this approach, you don’t merely sum up what has preceded—you discuss it from a different point of view.³⁵ Blend this approach, if you like it, with the requirements of your procedural code.

Show how a decision in your client’s favor would be good as a general, jurisprudential principle, or would set a good precedent. "[Y]our odds of