CHAPTER OVERVIEW
| 1. | Because the Table of Contents appears early in your brief, a well-written table represents a valuable opportunity to persuade readers. Some judges read the Table of Contents first to preview the argument and to see whether the case presents any unfamiliar legal issues. Accuracy matters; incorrect page numbers or typos will hurt your credibility and leave a negative first impression. |
| 2. | The movant/appellant/petitioner should ordinarily raise procedural issues first, then substantive issues, then remedies1 |
| 3. | If you are the appellee/respondent (or the party opposing a motion), organize your response differently: present strong, affirmative points first. Do not feel compelled to copy the sequence of the other side’s arguments. Sort the arguments to favor your client’s position and phrase your position positively. (For example, your heading should state “Smith’s complaint amply stated a cause of action for nuisance” rather than “Smith’s nuisance claim should not be dismissed.”) |
| 4. | Raising arguments in the alternative is generally fine, but avoid arguments that contradict one another. Readers loathe logically contradictory or inconsistent arguments. Also, many judges report that raising too many issues jeopardizes your case, so aim for four or fewer arguments. |
| 5. | When deciding which arguments to advance or discard, think through the remedy that your client will get if it prevails. Favor arguments that have better chances of securing a better victory, and deprioritize weak arguments. Likewise, pruning weak arguments from your filing is pivotal to good advocacy: cut dead branches so that judges can spot the fruit. |
| 6. | Do your best to prevent any heading or subheading from exceeding two lines (unless the court’s rules demand more detail). |
| 7. | Avoid headings and subheadings that are too technical such as those relying on obscure cases or dense citations. Ideally, readers will understand your main headings and grasp the argument you are making even without reading your brief. |
| 8. | Avoid vague headings that fail to apprise readers of the argument. For instance, “DC’s First Claim May Not Be Dismissed” does not tell the court what the section will discuss. |
| 9. | Use subheadings to explain why each heading is correct. Also, avoid placing your subheadings in all capital letters. All caps are harder to read, are not checked in most spell-check programs, and may seem aggressive to readers. All caps, however, are common in headings (as opposed to subheadings). Small caps are also acceptable in your main headings. |
| 10. | Your facts, too, can have subheadings. These are often sentence fragments. By contrast, headings and subheadings in the Argument are usually full sentences. |
1. Procedural issues include arguments related to jurisdiction, forum non conveniens, improper service of process, sovereign immunity, standing, ripeness, mootness, the political question doctrine, statutes of limitations, and so on. Substantive issues include arguments that provide or foreclose a remedy on a nonprocedural area of law; these sections are likely to rely on statutes, ordinances, regulations, doctrines, and other authorities on which your suit (or defense) is based. Remedies include issues such as the appropriate size of a damages award, what the scope of an injunction should be, whether the court should order rescission of a contract, whether to assess interest on the other side, and whether to award costs.