Example 13.4
Takeaway point 13.4: A Summary of Argument should generally present an abstract of your client’s best arguments and should then rebut the other side’s best arguments.
Let’s turn to a Summary of Argument, a section that focuses on the specific reasons that a party should win.
In the following case, a terrorist was caught smuggling bomb components across the border between the United States and Canada. A federal statute imposed a lengthy prison sentence on anyone who carried explosives “during” another felony. The defendant committed a felony when he lied on a customs form; thus, he was carrying explosives “during” his felony, but he alleged that common sense dictated that the explosives needed to be related to the felony. The Supreme Court rejected that argument based on the following brief.Source: Government’s brief in United States v. Ressam, 553 U.S. 272 (2008).
The Summary of Argument usually appears after the Statement of Facts and before the Argument. This is one reason that Introductions are so vital; they appear before the facts, which can seem labyrinthine without an overview of the case.
You may, but need not, demark where each argument begins. Use a new paragraph for each point.
The Summary begins by telling readers what the disputed statute says.
This sentence sought to lay out, with crystalline clarity, the positions taken by each side. This sort of juxtaposition offers much-appreciated help to judges.
Notice that the first argument actually combines two separate points: that “during” means “during” and that an adjacent provision “reinforce[s]” this conclusion.
As discussed in Chapter 11, arguing in the alternative is vital. The lawyers handle it here in a classic way. They affirm that they win on the prior grounds, but then add that they also win on additional grounds.
Pay special attention to the sequence in which the lawyers raise their arguments. They raise their three main affirmative positions first, moving from strongest to weakest. Then the brief rebuts the other side’s arguments in a carefully selected sequence that is discussed below. This is a paradigmatic example of moving from “affirmative to negative” arguments. The Summary of Argument should usually track the order in which the brief raises arguments.
The Supreme Court is not bound to follow the Ninth Circuit’s decision. So why does this counterargument come first — or appear at all? Notice the author. This paragraph is a love letter to Justice Anthony Kennedy, telling him that the lower court opinion was based on a misreading of a case that he wrote when he served on the Ninth Circuit. Notice, too, that this is the only case cited in the Summary. You can cite cases in your Summary, but do so sparingly. The first “negative” argument thus discredits the opinion below to maximize the chances of winning 5–4, or better. The brief does not bother to refute every argument that the other side raised; that assault appears later, in the Argument. The Summary targets merely the pillars of the other side’s position and a critical swing vote on the Court.