I welcome evidence to the contrary, but I don’t think that most courts appreciate surprises in briefs. Courts have limited time; they want to use that time to make the right decisions. The sooner you can tell a court why you should win, the better.
Put another way, the introduction to your brief matters a great deal.
Why, then, do so many introductions to briefs create surprises—or otherwise frustrate a reader—rather than provide a roadmap?
In this column, I want to examine several traits of ineffective introductions. I then propose five principles to consider when writing introductions. Finally, I extend an invitation that I hope you’ll accept.
Many introductions to briefs stress morality; the writers try to convince a reader that they are “right” and that their adversaries are “wrong.” This approach, though, overemphasizes discretion over rules. To be sure, in some cases—for example, certain discovery disputes and equitable matters—the notion of “fairness” matters. In most cases, however, a court wants to know which rules matter and why applying those rules to your facts means that you win. The concept of “fairness” is at best secondary.
Speaking of discovery and fairness, many introductions highlight the other side’s litigation tactics. This approach rarely aids a reader. This is especially true with dispositive motion and appellate briefs. Your brief may be correct when it says that “Plaintiffs Jody Davis and Keith Moreland have played fast and loose with discovery rules and have obfuscated the truth through preposterous objections.” This statement, though, says nothing about the substantive reasons why your client should win a summary judgment.
Other introductions are crammed with too many points—even if they’re all good points. Mashing too many points into an introduction creates at least three big problems. First, a reader can’t tell what’s most important. Second, the introduction will be too long; a reader who is stuffed after the appetizer won’t be very hungry for the main course. Third, a reader loses confidence in the brief: if the writer can’t say at the outset which points are most important, how can the reader trust the brief’s substantive points?
An introduction might have the right number of points but be fattened by another problem: terms and sentences that serve no purpose. One fingernails-on-a-chalkboard example is using defined terms. Consider the following opening paragraph of a Rule 12 brief:
Bobby Dernier Datsun (“BDD”) offers a Three-Year Limited Warranty (“Limited Warranty”) on all used Datsun cars. Plaintiff Leon Durham (“Durham”) has alleged claims for negligence, fraud, conversion, and violation of the Used Car Sales Act (“UCSA”) against BDD. Durham, who is bound by the Limited Warranty, cannot pursue these claims, including the UCSA claim, against BDD.
These defined terms have created purposeless clutter. Worse, the basis of the motion is missing. Take out the defined terms, add the basis, and the result is a much smoother read:
The economic loss rule prevents a party to a contract from recovering in tort from a breach of that contract. Here, plaintiff Leon Durham bought a car from Bobby Dernier Datsun; the purchase included an express warranty. Under the economic loss rule, Mr. Durham cannot sidestep the terms of the express warranty by pursuing tort claims. Mr. Durham’s complaint—having failed to state a claim—now merits dismissal.
Enough said about the problems. What makes an introduction effective? I offer five specific ideas. I’m not suggesting that these are the only principles that will create an effective introduction, but they help avoid the serious problems that I’ve discussed above.
First, in plain language, get to the essence. Think about how you would explain why you should win to someone who isn’t a lawyer. Hone this reasoning into a few sentences; make these sentences your opening paragraph.
Second, elevate objectivity above all else. Again, a court wants to make the right decision based on the law and the facts. The brief that can set out the law and the facts in the most objective fashion is most likely to lead a court to its desired destination. Though others might disagree, zealous advocacy is often centered on objectivity.
Third, impose a cap on the length. A cap on length might seem arbitrary, but a cap imposes discipline and helps ensure that you don’t exhaust the reader. Your length might be one page, or three paragraphs, or a certain number of sentences. Whatever it is, if you impose a limit at the outset, you’ll be more likely to follow it.
Fourth, finish by saying what you want. When a court is finished with your brief’s introduction, the court should know how you want the court to rule and why. The final paragraph should make this clear.
Fifth, give your introduction to a colleague to read. I give every brief that I write to a colleague to read; I specifically pick a colleague who hasn’t worked on the case. My colleague’s perspective comes close to mirroring a court’s perspective; my colleague, after all, similar to the court, becomes busy studying the introduction with fresh eyes, and he or she wants to figure out the right answer. If you’re concerned that you can’t bill your colleague’s time, give it to him or her anyway. Wouldn’t you rather have a winning brief?
As a final point, I am very interested to hear from you about the principles that you follow when drafting introductions. What works for me might not work for you. I invite you to contact me, please, at firstname.lastname@example.org.
Stephen Feldman is a partner at Ellis & Winters LLP, a litigation boutique in North Carolina. He concentrates his practice in three areas: complex business disputes, appeals, and antitrust. He is a member of DRI, and he serves as vice chair of the Commercial Litigation and Appellate Sections of the Federation of Defense and Corporate Counsel.