Your Table of Contents is so pivotal to good advocacy that this chapter may be the most important in the book.
Yes, you read that correctly: the Table of Contents. To understand why this is true, you first need to broaden your ideas about what a Table of Contents does. In a motion or brief, it does much more than list the document’s headings and corresponding page numbers.
It implicates critical choices about how to select and sort your arguments and how to frame your client’s story. That is, it becomes a tool to use in selecting and organizing the components of your client’s case, not simply a rote list of headings that you compile immediately before you submit the brief to the court. You can use the Table of Contents, for instance, to decide issues like these:
· Which argument should I feature?
· Should I include a backup argument? A backup to my backup?
· Should I include an argument that I know will lose just to preserve the issue for appeal?
· Which argument should I place first: a long-shot argument requesting substantial remedies or a strong argument requesting limited relief?
· Should I place a weak procedural argument in front of strong substantive arguments, and risk weakening the brief by leading with a loser?
· If I am trying to reverse a decision below, how many issues can I raise before the appellate judges infer that none of my points deserve their attention?
These and countless other choices are reflected in the words (and omissions) of your Table of Contents.
There are no hard-and-fast rules about how to pick, ditch, and sort your arguments. You must rely on your judgment and experience, knowing, of course, that different cases will require different approaches. But by looking at a few strong Tables of Contents, you can infer how some great advocates make their choices, which will improve your instincts about how to select and sequence your own facts and arguments. This exploration is just the beginning, however; throughout your career, you will cultivate your ability to spot and build a winning strategy.