This chapter explores two related parts of a brief: the Introduction and the Summary of Argument.

The chapter explains both how to write these sections effectively and how to prevent them from repeating one another.

Let’s first discuss Introductions. Many appellate briefs (and most trial motions) contain some form of an introduction.

This is a case about a lawyer who, in the context of his own disciplinary proceeding, scolded a district court judge, labeled him a puppet, attacked his integrity, and then chose not to show up to defend himself when the judge set a hearing to decide if the lawyer should be found in criminal contempt. When the penalty was, not surprisingly, that he lost his ability to practice law in the district, the lawyer appealed.

Within thirty seconds of opening this brief, judges learn some of the lawsuit’s key facts. They know that this brief will try to uphold the lawyer’s punishment. And the Introduction primes readers to see the case in this party’s favor: judges will view the suspended lawyer with skepticism, resent his disdain for the court system, and feel like some punishment was probably appropriate.

Not a bad start for two sentences. And that’s the point. That’s exactly what an Introduction should do.

Introductions are, in some ways, the closest that lawyers come to being spokespersons for politicians. When writing an Introduction, imagine that you are appearing on CNN or Fox News to explain a legislative proposal. If you begin by describing the nuances of the bill, viewers will yawn and change the channel. But you hook them when you begin with a short, compelling explanation about why the law was enacted, what problems it fixed, and why the law is important.

This Introduction, for instance, concisely conveys the brief’s core points:

Plaintiffs’ suit is based on the remarkable contention that selected members of certain U.S. industries — alone among the billions of emitters of greenhouse gases throughout the world—are responsible, in tort, for all injuries allegedly caused by global warming, including enhancing the destructive force of Hurricane Katrina. Although Plaintiffs style this as a typical common-law nuisance case, it is not.... Plaintiffs’ effort to squeeze the enormous “complexity of the initial global warming policy determinations” into the rubric of ordinary tort law stretches the judicial function well past the breaking point.

This Introduction, however, then went on for five more pages. That is far too long. Legal Introductions resemble social introductions: if you want to meet someone at a party, you’ll be grateful if a mutual friend tells you the person’s name and shares a few choice details to spark conversation. But if the same friend blabs for fifteen minutes, you’ll crave silence long before he finishes talking. His bloviation is no longer an Introduction, but a lecture. Likewise, legal Introductions should be short and pithy. They should convey the theme or themes of the brief — for example, why it matters whether your client wins, what injustice the court should correct, and how the court should see the pivotal issue in the case.

Some great lawyers disagree with this advice and favor lengthy Introductions, but the judges with whom I have spoken share my view. As one example, Judge John Walker of the Second Circuit emailed me this observation, which perfectly mirrors my own view: “A brief introduction can help persuade a judge of the justice of your side. But don’t overdo it with undue length or purple prose.” Some lawyers nevertheless give judges more than what they want.

A Summary of Argument is different from an Introduction. As its name suggests, it summarizes. That does not mean that a Summary should repeat your headings. Rather, it should provide a boiled-down explanation of your key arguments and a short, sharp refutation of the other side’s main points. The Summary does not need to include every subargument that appears in your brief, but it should outline your main points.

This chapter discusses the Introduction and the Summary side by side because so many lawyers are unsure how to apportion content between these two sections. To highlight the difference between a Summary and an Introduction, let’s consider a short passage from each section. First, consider this clip from a hypothetical Summary of Argument:

The district court erred for three reasons when it dismissed Adam King’s lawsuit against the Detroit Police Department on the grounds that the Department was not liable for acts committed by off-duty officers. First, it elected not to follow two clear opinions from the Sixth Circuit that “plaintiffs may recover when off-duty officers cause injuries in furtherance of official police business.” In cases nearly identical to this dispute, the Sixth Circuit has allowed a plaintiff to recover damages from off-duty officers and from their police departments. Second....

By contrast, an Introduction might begin — and end — this way:

Seven off-duty police officers received a report through their Department-issued radios that Adam King had exceeded a posted speed limit by seven miles per hour. Those officers then followed King — in their Department-issued cars — at 120 m.p.h. to catch him. They activated their patrol cars’ sirens to pull him over and then used their Department-issued batons to dislocate King’s jaw, break his hands and arms, and leave him in a coma for six weeks.

In other words, the Introduction familiarizes readers with the dispute and synthesizes the brief down to a single issue, principle, or theme, almost as if to take the judge aside and say “here’s what this case is really about.” By contrast, the Summary of Argument provides an abbreviated glimpse of the brief’s arguments — either all of them or the major ones, as if to say, “we win for the following three [or four, or more] reasons.”

Trial motions, in particular, often do not include an Introduction; they instead use a Preliminary Statement, which combines your Introduction and your Summary of Argument. That approach gives judges enough information to resolve a case in your favor, even if they skim (or skip!) the rest of your motion. Nevertheless, be wary of letting the hybrid Introduction-Summary run for more than about three pages; you likely will lose your judge’s attention if your Introduction runs longer than this.