Example 11.2

Takeaway point 11.2: Keep your Tables of Contents short, simple, and clean.

Tables of Contents should be short, simple, and clean, as we see below. In this case, Paul Konowaloff sued the Metropolitan Museum of Art to recover a painting created by the legendary impressionist Paul Cezanne.

Konowaloff alleged that the painting was seized from his ancestor in 1918 by Russia’s Bolshevik Party. He argued that because he was the heir of the painting’s rightful owner, he should gain possession of the work. The museum moved to dismiss the complaint, arguing that Konowal-off’s claim was barred by various legal doctrines, each of which provided an independent basis to preclude Konowaloff’s lawsuit. The court agreed and dismissed Konowaloff’s complaint.

Source: Museum’s motion to dismiss in Konowaloff v. Metropolitan Museum of Art, 10 CIV. 9126 SAS, 2011 WL 4430856 (S.D.N.Y. Sept. 22, 2011).

Many briefs begin with an Introduction. When the applicable court rules are silent, skilled lawyers often add a thematic Introduction to the start of their brief to orient and persuade readers. Chapter 13 explores this technique.

When responding to the facts that appear in the complaint, you may want to remind the court that the facts are merely alleged. Frame the facts in a way that helps your client even when (as on a motion to dismiss) the other side’s alleged facts are presumed to be correct.

Many courts require this section, which lets the court know the standard or standards that govern the issues in the case.

For instance, which facts must the court presume to be true (if any)? What materials can the court consider at this stage? If the case is on appeal, how trustingly or suspiciously must it look at what the trial court did? In many cases, the standard of review can determine the outcome, thus dictating the prudence of raising an issue at all. For instance, if the trial judge denies sanctions and the “abuse of discretion” standard applies, it is wildly unlikely that an appellate court will second-guess the trial judge. Know the applicable standard and frame the standard helpfully — just as you would any other legal doctrine.

The motion to dismiss raises multiple, independent grounds to dismiss the complaint. This approach is effective because winning one of the arguments will doom Konowaloff’s lawsuit. When an argument requires multiple steps or showings, the chance of winning plummets. Note, further, that a Table of Contents typically will not explain terms like the “act of state doctrine,” but the subheadings may provide contextual clues to help readers figure out what the doctrine entails. Other than the act of state doctrine, the arguments in this motion are quite common, so they do not require the sort of explanatory hints that the subheadings to section I of the motion provide. This Table also offers another clue: by providing detailed subheadings about only the first argument, it signals that this issue (the act of state doctrine) is the most important point. And sure enough, the court resolved the issue based on this argument. As an aside, the presiding judge had submitted a brief involving the act of state doctrine when she was in private practice, demonstrating the value of profiling judges to learn their preferences, jurisprudential approach, and substantive experience. The lawyers were able to assume that she was familiar with this doctrine.

This Table of Contents does a stellar job of writing short, clear headings.

In general, however, use your headings to explain why a given doctrine or rule applies, such as by adding “because X and Y.” Alternatively, you can use subheadings to convey these points as the subheadings to Section I demonstrate. Try to keep your Table of Contents to one page—and rarely (if ever) more than two pages because less effort makes for happier judges. Tables of Contents should be short and helpful.

Notice that the “fourth” argument actually combines two distinct but related points. The lawyers apparently wanted to comply with Judge Ruggero Aldisert’s “primo” rule, which appears on page 192, that a brief should not advance more than four issues. Combining related issues into one heading is a clever trick to make your brief seem like it addresses fewer issues than it actually does, provided that the issues actually fit together when placed alondside one another.

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Source: Messing Noah A. The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers. Aspen Publishers,2013. — 310 p.. 2013

Example 11.2

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