Example 13.6
Takeaway point 13.6: Trial motions often contain a Preliminary Statement that merges a thematic Introduction with a point-by-point Summary.
Next, we review a lean Introduction-Summary hybrid involving the estate of Mario Puzo (author of The Godfather).
Trial motions often label these hybrids as a “Preliminary Statement.”\ Pay attention to when you feel oriented about the case.Source: Paramount’s motion to dismiss counterclaims from Paramount Pictures Corp. v. Estate of Mario Puzo No. 12 Civ. 1268 (S.D.N.Y. Sept. 26, 2012).
alt=00070.jpg> The Preliminary Statement specifies that it seeks to dismiss two (but not all) of the counterclaims. The lawyers probably considered specifying which two claims they were targeting, but they waited two paragraphs to provide those details.
The lawyers provide relevant details that nevertheless gum up the motion. They mention Paramount’s procedural name in the case, which stalls the flow of the motion. This sort of extra detail is important, but be certain to write empathetically, making your case easy for the judge to follow.
Avoid repeating the same uncommon word in a sentence, such as “concerns” and “concerning.”
Readers are most likely to be confused at the beginning of your motion or brief, so use short sentences to ensure that your points and facts are digestible.
Here, readers would have benefited from a clue like, “After publishing the one sequel that Paramount authorized, the Estate commissioned two additional sequel novels.” That clue would clarify that the Estate published three sequel novels, not two.
The “Introduction” side of this Preliminary Statement ends here. The remainder provides a summary of Paramount’s argument.
Even though the case is pending in federal court, a decision from the New York Court of Appeals was especially valuable because state law governed the contract.
WARNING! Watch out for “circular” reasoning. This sentence basically says that monetary damages are not inadequate because they are adequate. Here, however, this circular reasoning is a reasonable move for these lawyers to make: if they try to predict what “irreparable harm” the other side will allege, the other side can simply assert other rationales. This approach basically adds a placeholder. Once the Puzo estate explains why money will not suffice to remedy its injuries, Paramount can counter those points in its reply.
FREQUENTLY ASKED QUESTIONS ABOUT INTRODUCTIONS AND SUMMARIES OF ARGUMENT
| Q. | You mention that Introductions generally convey the theme of a brief. Should every brief and motion have a theme? |
| A. | Every brief and motion should have a theme and an Introduction; in practice, however, some briefs are less conducive to a unifying theme than others, such as filings that address multiple parties and multiple, distinct issues. Similarly, some motions (such as a battle over fifteen separate discovery issues) may be too sprawling or banal to have a unifying theme. But search for one. That’s a key part of developing your persuasive powers. For example, the theme of a broad discovery motion might be that the other side has systematically attempted to conceal documents that it was required to produce. The Introduction could provide an overview so that the individual points wouldn’t seem rambling and chaotic. Indeed, Introductions are often most valuable when the brief or motion deals with numerous issues that do not relate to each other in obvious ways. The more convoluted and complicated the case, the more your Introduction can act as a beacon. |
| Q. | If I include both an Introduction and a Summary of Argument, how do I keep the latter from being repetitive? |
| A. | Place different type of points in the two parts of your brief. More specifically, think about how and where to use ethos, pathos, and logos, which are the three basic modes of persuasion. Ethos largely focuses on character, morality, and credibility — making readers believe you and your motives. Pathos appeals to a reader’s emotions. Logos builds a logical argument. In an Introduction, ethos or pathos is usually the dominant element: your Introductions need to orient judges, build trust, and motivate them (without being melodramatic) to feel like some wrong has occurred that they must remedy. By contrast, the Summary’s dominant mode of persuasion is logos: it provides a short recitation of the various arguments, mostly based on logic, that favor your client. Both of these sections may use all three modes of persuasion, but focusing on ethos or pathos (so long as you don’t go overboard) will produce good Introductions just as focusing on logos will produce good Summaries. |
| Q. | What advantages or disadvantages are there to combining an Introduction and a Summary of Argument? |
| A. | When you combine an Introduction and a Summary, you provide a judge with one- stop shopping: the first few pages of the brief provide a sufficient overview to discern what happened, what the judge should do about it, and how to get there (i.e., the arguments that would support that outcome). On the flip side, a unified Introduction and Summary is often long — four to six pages is common for this approach — so it may bore readers before they even reach your Statement. Also, until readers have read your Statement, they may not understand all of the arguments in your Summary. California attorney Steve Hirsch is a master of this sort of merged Introduction-plus-Summary, and his work is recommended highly as a model of great advocacy, both in general and for lawyers who want to try the integrated approach. But this book recommends separate Introductions and Summaries because of the importance of brevity. |
| Q. | Should I fear that the judge might read only my Summary of the Argument, and not the Argument itself? If so, how do I deal with that risk? |
| A. | Few judges disclose which parts of briefs they read, skim, or skip, but one Supreme Court Justice has disclosed that he doesn’t read the Summary of Argument, and multiple law clerks have told me that they skipped Introductions. So, because you do not know whether or when judges might cut corners, try to make your Introduction, your Summary of Argument, and your Argument independently capable of convincing a reader that your client’s position is correct while limiting repetition. |
| Q. | What should I do if court rules prohibit me from including an Introduction or a Summary of Argument in my brief or motion? |
| A. | Consider weaving one or both of them into some other section. For instance, without labeling your opening page as an “Introduction” you can include a short paragraph or two — without a heading — before you describe the facts. Alternatively, your Statement of Facts can begin with a short overview — in other words, an Introduction — cloaked as facts. (And, yes, many judges have by now come to expect this approach.) You can then add some visual clue, such as a subheading or several asterisks in the middle of the page, to signal that the stealth introduction is ending. The same principle applies with the Summary of Argument; the rules governing trial motions often do not call for this section, so your Argument can begin with a short roadmap that summarizes the points that follow (if you choose not to summarize your arguments in your Preliminary Statement). Why are these tricks acceptable? Because hawk-eyed clerks watch for headings that the court rules prohibit, but they usually don’t mind if the contents of a required section take a few minor liberties. Thus, even when court rules do not call for an Introduction or a Summary, you can usually introduce your case and summarize your arguments so long as you don’t add a heading. |