Example 11.1

Takeaway point 11.1: Use your Table of Contents to convey your key points.

We begin with a Table of Contents that is flawed — but brilliant. It shows that the key roles of a Table of Contents are to highlight the central theme of your case, to shape a judge’s impression of the litigants, and to advance your client’s strategic goals.

The technology titan Apple sued Samsung in August 2011, alleging that Samsung had infringed ten patents that belonged to Apple. Four days after filing the lawsuit (and before Samsung had even answered the complaint), Apple filed a Motion to Expedite Discovery. Moreover, Apple managed to place its key argument in front of the judge. You’ll see it below. In less than thirteen months, the case reached a jury, which awarded Apple more than $1 billion.

Source: Apple’s Motion to Expedite Discovery, from Apple, Inc. v. Samsung Electronics Co., No. 11-cv.- 01846-LHK (N. D. Cal. May 3, 2011)

Notice that the first heading does not specify who might be prejudiced or how. Nor does it specify who needs expedited discovery or why they need it. Stylistically, this heading is flawed.

This heading advances Apple’s core argument in the case and, in just eight words, brands Samsung as the villain in the case. Also, by moving to expedite discovery, the motion conveys to the court that Apple was eager to litigate the dispute, which signals strength and credibility. This motion also forced the judge to focus on the case promptly — and possibly before Samsung had a chance to perfect its defense strategy. This is a strong and savvy heading (and a clever motion) that helped Apple get its case to a jury quickly.

As we see in this chapter’s other examples, good headings in dispositive motions and appellate briefs usually “nest” their headings: they add subheadings to substantiate the claim contained in the major headings. But if your client has multiple, simple points or if the motion will not resolve a major issue in the case, unnested headings (which Apple uses here) may make