Example 11.3

Takeaway point 11.3: Use subheadings to explain and substantiate your primary headings.

The Table of Contents in Example 11.2 uses subheadings to explain why the court should follow its first argument, but it did not do so for the other arguments.

We looked earlier at an example from Exxon’s brief opposing the award of punitive damages after the Exxon Valdez oil spill in 1989. Here, the plaintiffs’ lawyers try to defend their clients’ multibillion dollar award.

Source: Baker’s brief in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).

The brief begins with a theory of vicarious liability. That’s fine; the lawyers concluded that the evidence that Exxon’s agents had acted recklessly was more powerful than the evidence that Exxon itself had acted badly enough to warrant punitive damages. But see the next comment.

Subheadings should match the heading. Here, the first subheading mirrors what the heading promised. But subheading I.B refers to “Exxon’s Own Recklessness” (emphasis added). Heading I, however, did not mention Exxon’s recklessness — just that of its “top management.” As a legal matter, Exxon is liable for the actions of its top managers, and the brief lucidly explains this point. Even so, the headings seem inconsistent, which could jar judges when they first read this brief.

This heading raises a procedural argument — that Exxon failed to raise (and thus waived) the argument that the Clean Water Act prohibits punitive damages.

The subheadings in Section II each substantiate the main heading — a prototypical approach. But notice the tricky choice about how to sequence these two sub-points. Placing the procedural issue first (i.e., that Exxon waived the argument) could signal to the Court that Exxon’s substantive argument is strong. But reversing the order would cause the opposite problem, weakening the argument that Exxon waived this issue. Whichever argument comes second is hobbled. One possible solution: stick with the order that the lawyers use here, but shorten the waiver argument to signal that the issue is open-and-shut and to maintain the flow of the substantive argument. As Example 11.4 will show, you generally should discuss procedural issues before substantive ones. Baker and the other plaintiffs sensibly follow this principle within Section I of his argument.

The brief’s sequence of arguments is reasonable, but Sections II and III could be reversed to emphasize that the punitive award was reasonable and to place at the end of the brief the defensive point that is currently in section II. Here is a possible revised order: (I) Exxon is liable for punitive damages, (II) the size of those damages was appropriate, and (III) the Court should not permit Exxon’s meritless attempt — which it waived — to use the Clean Water Act to shield itself from liability. I don’t present either approach as right or wrong, merely as evidence that the same case can be sensibly litigated in different ways or sequences.

Separately, notice that heading III is defensive; the damages are merely “permissible.” Phrase your headings more positively, such as “The Size of the Punitive Award Comports Fully with This Court’s Precedents and with Traditional Maritime Law.”

Most court rules allow litigants to append materials to a brief or motion. Do so when statutes or other materials are bulky enough that they would clog the body of your brief. In trial courts, remember that record materials, such as documents and deposition transcripts, should be attached to a witness’s declaration.