Simple Tools to Introduce Your Brief Sections with Style

By Joe Regalia

Everyone writes a little different. But one place where we really change it up is in the beginning of the sections to our arguments. Some lawyers include multiple paragraphs (or even pages) of introductory exposition.

Other lawyers start with nothing at all, like this:

I. Argument

[Nothing?]

A. Section 1…

I think the latter approach may be a mistake (at least in most cases). Readers crave guidance, so a roadmap at the outset of each section is helpful. And I don't mean just listing out the issues—but a meaningful roadmap. Explain why you are analyzing these issues, explain how the issues fit together with each other, and explain how this section fits in with any others in your brief. That context will make it a lot easier for your reader to see the forest before the trees.

And these introductions can do even more. Like the overarching introductions to your briefs, these sections can include some persuasive framing to set up the coming arguments. Think of this like your section's brochure. And remember that, like any beginning, writing inviting prose here will instill a good first impression.

Consider:

  1. Identifying each key point you will analyze in the section that follows.
  2. Disposing of any relevant side issues that you will not analyze, and explain why.
  3. Giving your reader any helpful context.
  4. Highlighting a persuasive fact or argument.
  5. Making the section look inviting—don’t bog it down with tons of cases or heavy writing.

Here’s an example of a roadmap done right from a brief filed in the Fifth Circuit. Note that the lawyer previews the persuasive pitch of the section (that the other side’s use of a doctrine is unprecedented and improper). Then he sets up the following three sections: One looking at the doctrine’s source, one discussing the doctrine's underlying purpose, and a final section walking through the precedent:

Although González never identifies it by name, his argument is premised entirely on the application of the entry-fiction doctrine to this case. By invoking the entry fiction, he proposes to treat Martinez-Agüero as if she had been completely outside U.S. territory when he attacked her. What González does not disclose, however, is that the entry fiction has never been applied to determine legal rights and obligations vis-à-vis mistreatment of aliens as opposed to admission or exclusion determinations. Nor does he acknowledge this Court’s explicit rejection of the entry-fiction doctrine in such circumstances. An examination of the doctrine’s source, its rationale and the cases applying it demonstrates its inapplicability here.

Here’s another great one that roadmaps and inserts some zest from the persuasive argument coming. This writer also makes it even easier with a numbered list:

First, Ms. Gratz’s motion to intervene is untimely. Second, Ms. Gatz lacks a substantial legal interest sufficient to support her intervention. At most she has a mere desire to see Proposal 2 upheld for political and ideological reasons. Third…

Remember that, like headings, this introductory section sets the tone for the rest of the section. So make it look inviting. Good style will help with that. Avoid weighing this roadmap down with lots of citations, heavy sentences, complex details and concepts—or anything else that will make your reader dread reading on. Save the tough stuff for the body.

The start of your sections should be an elevator pitch that sells your section and promises an engaging and organized read to come. Here are some famous legal writers taking their time to roadmap their sections with fresh style. Note that the persuasive pitch for each section is bottled up in a quick intro sentence or two.

Justice Kagan:

That conclusion raises a second dispute between the parties: What is the proper scope of judicial review of the EEOC’s conciliation activities? The Government (once having accepted the necessity for some review) proposes that courts rely solely on facial examination of certain EEOC documents…

Justice Gorsuch:

So with that guidance in mind, what's the prison's compelling interest at play in this case? We see three possibilities. [Followed by three summaries of the sections analyzing the possibilities]…

Judge Bybee (note how this Judge makes this intro even more useful by signaling to the reader that it's skippable):

In this section, I provide background on the source of Congress’s and the President’s authority to exclude aliens, the Executive Order at issue here, and the proceedings in this case. The informed reader may proceed directly to Part II.

Judge Goldgar:

Earley’s plan properly treats Traid’s claim as unsecured, but not because Hunt controls the issue. It does not. Triad’s claim is unsecured because of the nature of Triad’s lien and the interplay between [one Act] and the automatic stay under the Bankruptcy Code…

Some legal writers dive deeper into the persuasive pitch, especially if it's a big section with moving parts:

The two primary goals of this class action are to: (1) set aside Rapid Cash’s default judgments procured through its fraud upon the courts of Clark County and (2) judicially compel Rapid Cash to disgorge the substantial sums that it has collected from the class members under the purported force and effect of its illegally obtained judgments. The crux of this class action is thus equitable, not legal or procedural, in nature. In challenging district court jurisdiction, Rapid Cash relies heavily on the portion of JCRCP 60(b) authorizing motions to set aside justice court judgments. That rule and the specific portion relied on by Rapid Cash, however, has no relevance because this is an original, independent action in equity under the savings clause of NRCP 60(b), which falls within the exclusive jurisdiction of the district courts…

Take advantage of that empty space after your headings. Your readers will thank you.

Note: This article was originally published by Joe Regalia on the Appellate Advocacy Blog.