Appellate Adventures, Chapter 15: "How Do I Write the Introduction and Summary of Argument?"

Our story so far:

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test at a tennis tournament.

With the guiding hand of Patty Plato (his former law school professor), Flash had weighed the likely costs and benefits of appealing the Bull's ruling - and decided to go ahead. So he filed his notice of appeal and his designation of record, then drafted an outline of his opening brief. Plato advised him how to draft the procedural facts section of the brief, then the substantive statement of facts, and how to organize and present the Argument section. [See prior Moskovitz On Appeal columns.]

"So I guess we're pretty much done, Professor. We've discussed the Statement of Facts and the Argument sections of the brief. What's left? A short Conclusion?"

"More than that, Flash," replied Plato. "We might have a couple more opportunities to do what we came for: persuade the appellate court to reverse."

"Like what?"

"An Introduction -- maybe."

"Oh yeah," said Flash. "I see one of those in just about every brief I've looked at."

"And? What do you think of them?"

"They usually put forth a forceful argument that the trial court was wrong and should be reversed. But I don't know what they're talking about, because I don't know the facts. Actually, I don't know anything about the case yet. So the Introduction tells me that the lawyer who wrote it feels very strongly about it. But it doesn't tell me enough about the basics to persuade me. They usually go on for eight or ten pages, which I just skim or skip."

Plato said, "That's pretty much how most appellate judges see Introductions, Flash. They give you a glimmer of the issues, but that's about all. They rarely accomplish what the writer set out to do: persuade. And often the judge does what you did: just skim it or skip it."

Flash said, "Why do you think that is, Professor?"

Plato replied, "Let's start from scratch. The rules don't require an Introduction. So if you include one, you'd better have a pretty good reason. And that reason should control how you write it."

"One possible reason is persuasion. A short, powerful Introduction that summarizes the reasons for reversal can have quite an impact -- all by itself. But few cases lend themselves to this, because your reasons won't have any impact on the reader unless you also include enough undisputed facts to enable the reader to understand what happened. Never forget: the reader who picks up an opening brief knows nothing about the case -- not a single fact. And if you omit facts that might hurt you, your opponent will hammer you on this in the respondent's brief, and your credibility will suffer.

"All this must be done with an Introduction that is short -- no more than two or three pages. If it's longer than that, it's no longer a real Introduction, and the judge will probably skip it.

"In many cases, however, the nature of the case makes it impossible to keep this type of Introduction down to three pages. Lawyers end up with a nine or ten-page Introduction. As it won't be read, it has no persuasive value.

"If the facts of your case allow you to pull off a short, persuasive Introduction, consider calling it 'A Summary of this Brief.'"

Flash said, "I'm not sure I can do that in my appeal and still hold the Introduction down to three pages. It might take me a page or two just to give a fair summary of the facts, some of which were disputed."

Plato replied, "If you can't do it in three pages, don't even try it. It will do more harm than good.

"Instead, consider writing a different type of opening that serves a very different purpose: to give the judge a short Overview of the basic facts and issues. This will enable the judge to read what's coming next (the Statement of Facts) with some idea of the relevance of the facts she is reading. Don't even try to include any argument in the Overview. It's meant to inform, not to persuade."

"Is there any other opportunity to persuade the court?"

Plato said, "Consider including a Summary of Argument, right after the Statement of Facts and right before the Argument. This is especially useful if you chose to write an Overview rather than an Introduction. Because your facts are complicated, you could not write a persuasive Introduction and still keep it short. But now the judge has read your Statement of Facts, so it's the right time for her to see a summary of your arguments."

Flash asked, "But haven't I already done that, with my Outline of Argument, which appears in my Table of Contents?"

Plato said, "Yes, you have -- sort of. But those were only short headings. Explaining them in prose can make them clearer. That's what a Summary of Argument does. Keep it down to no more than a couple of pages. Write it carefully. If well done, it can be very persuasive.

Next chapter: How to write a brief for the respondent. 