FREQUENTLY ASKED QUESTIONS ABOUT SELECTING AND ORGANIZING ARGUMENTS
| Q. | To what extent should I select my arguments based on my judge’s preferences, expertise, jurisprudential outlook, and so on? |
| A. | Adapt to the judge without being obvious about it. He or she resolves your case, so please your most important reader. That said, ensure that you preserve arguments that you will want to raise on appeal, even if they may not please the trial judge. |
| Q. | In my Argument, which numbers or letters should I use in my headings? |
| A. | Your headings should use uppercase Roman numerals (I, II, III). Your first level of subheadings should use uppercase letters (A, B, C). Your next level of subheadings should use numbers (1, 2, 3). Try to avoid further nesting. If, however, you need sub-sub-subheadings, use lowercase letters (a, b, c) followed by lowercase Roman numerals (i, ii, iii). |
| Q. | Can I repeat my heading in the first sentence of a section? |
| A. | Avoid doing so because your brief or motion will sound too repetitive. |
| Q. | How can I keep headings to two lines and adequately explain my premise? |
| A. | Lots and lots of editing. You may also move the explanation for your heading’s premise to subheadings. Consider this approach when your argument is complex or has multiple parts. If necessary, use a longer heading. As you saw in this chapter, many headings and subheadings consume more than two lines. The two-line principle should guide you, not torment you. |
| Q. | This chapter presented lots of tips about how to sequence arguments. Can you restate your recommendations about how to organize arguments in one list? |
| A. | Sure. Here they are: |
· Place procedural and other threshold arguments first.
· Sort procedural arguments chronologically (e.g., discuss the other side’s failure to serve notice to your client before you discuss the trial judge’s failure to instruct the jury properly because serving notice happens long before a trial occurs).
· If procedural arguments occurred concurrently (e.g., as defects in a complaint), follow the rules about how to sort substantive arguments, which appear in the next bullet.
· After you raise procedural or threshold arguments, assert your substantive argument with the highest expected payoff, then your next-best-yielding argument, and so on.
· Place requests for relief after arguments that relate to substantive law.
· If a given argument has multiple sub-arguments, then use the same sequence within any given section of your Argument: raise procedural issues first, then substantive arguments, and then issue relating to remedies.
· Deviate freely from the above approach if sound reasons exist, such as to improve the flow of your argument.
1. Procedural issues include arguments related to jurisdiction, forum non conveniens, improper service of process, sovereign immunity, standing, ripeness, mootness, the political question doctrine, statutes of limitations, and so on. Substantive issues include arguments that provide or foreclose a remedy on a nonprocedural area of law; these sections are likely to rely on statutes, ordinances, regulations, doctrines, and other authorities on which your suit (or defense) is based. Remedies include issues such as the appropriate size of a damages award, what the scope of an injunction should be, whether the court should order rescission of a contract, whether to assess interest on the other side, and whether to award costs.