Example 11.5
Takeaway point 11.5: Raise substantive issues before you discuss remedies.
Make your reader want your client to win before you ask for a remedy. The next case arose in 2007 when Missouri indicted Galin Frye for driving with a revoked license.
Frye’s three previous convictions for the same offense elevated his charge to a felony, and he faced up to four years in prison. The prosecution’s plea agreement offered Frye a three-month sentence, but his counsel never conveyed this offer to Frye. Instead, Frye pled guilty and accepted a three-year sentence. When he later learned that his lawyer failed to mention the three-month plea offer, he appealed, raising an “ineffective assistance of counsel” claim. Under Strickland v. Washington, 466 U.S. 668 (1984), criminal defendants can attack their convictions if counsel performed deficiently at trial and if that deficiency was prejudicial. Later cases had extended Strickland to both guilty pleas and the plea negotiations that preceded a guilty plea. Frye sought to further extend Strickland to plea offers that a defendant did not accept — or hear about. And as you’ll see in section II of Frye’s Argument, he needed to overcome one other major hurdle. Thanks to this brief, he succeeded.Source: Frye’s brief in Missouri v. Frye, 132 S. Ct. 1399 (2012) (omitting Question Presented, Tables, Statement, and Summary of Argument from the Table of Contents).
Briefs need not raise multiple arguments. This Table of Contents raises just one argument and then places in subheadings the supporting points needed for the argument to succeed. The first heading discusses the substantive issue; the second heading addresses the appropriate remedy.
Under Strickland, a defendant can establish that he received ineffective assistance during a trial by showing (1) “that counsel’s representation fell below an objective standard of reasonableness” and (2) that the bad lawyering harmed him significantly. Here, Frye relies on a case that extended Strickland to pretrial proceedings, thus referring to settled law in order to stretch it.
alt=00105.jpg> As reflected in this heading, Frye’s lawyers have a crystal-clear theory of the case, which allows them to be precise and direct about what they want the Court to rule, namely that Frye had a constitutional right to learn of the plea offer.
WARNING! Notice that “would” is not capitalized and that other words (of, is) are capitalized inconsistently. There’s no rule requiring initial caps, and you (like these lawyers) may capitalize certain words inconsistently if you use initial caps for only certain words. I recommend using the same approach to capitalization as in any other sentence, but make headings bold and indented to signal that a new section is beginning. At a minimum, be consistent.
This argument rebuts the other side’s position in three ways: by stating that Frye’s preferred test is "well established,” by reminding the Court that Frye won below, and by using language from Strickland that spells out how the test would operate for this new procedural protection.
Frye argues for a remarkable remedy: to let him rescind his guilty plea and retroactively accept the three-month plea offer that he never heard about. But the brief brilliantly tries to make this exceptional remedy look “standard” and reflective of what happens for “all constitutional violations.”
WARNING! Avoid adding too many modifiers to your nouns. The highlighted text is one long noun. Page 257 (Tip 9 in Chapter 16) discusses how to avoid this problem.
Frye waits until the end to rebut — just as this book recommends. Missouri’s various policy arguments are pooled to make the state’s brief sound hysterical and implausible. In general, restrict headings to two lines of text. This three-line heading, however, signals that the section will rebut five points, making it much shorter than bogging down this section with a subheading for each of the state’s arguments.