Open with a Flash, Not a Fizzle

Avoid the standard "now comes" introduction and start your briefs with a capsule summary, like some of the best appellate judges

Photo Credit: Dan Counsell

Note: This is post is not wholly appellate focused, but the principles apply to appellate briefs as well. And some of the best models come from appellate judges.

Imagine you opened To Kill a Mockingbird and read: 

NOW COMES Harper Lee, by and through the undersigned publisher, HarperCollins, and moves this honorable reader to enjoy a fictional story, hereafter referred to as “To Kill a Mockingbird,” about Jean Louise Finch (hereinafter, “Scout”) and her brother Jem Finch (hereinafter, “Jem”) . . .

Unless you are a high-school student required to read on, you would find the nearest library donation box and pitch the book right in.  And yet, every day, lawyers begin trial-court briefs with boilerplate introductions just like that one:

NOW COMES Generic Corporation (hereinafter, “Generic”), by and through undersigned counsel, and moves this honorable court to issue an order granting summary judgment on all the claims raised by Plaintiff John J. Doe (hereinafter, “Doe”) because Doe has established no genuine issue of material fact permitting this case to proceed to trial. 

As you might imagine, judges are not quivering with anticipation to read on.  Worse still, using this formulaic incantation tells the reader one thing for certain:  Whoever wrote this brief spent little time on the opening paragraph, which does not bode well for the next twenty to forty pages.

Fair?  Probably not. 

After all, the attorney was probably using a template his law firm has been using for decades.  And he probably (hopefully) put a lot more care into the “meat” of the brief.  But why file a product that is a turnoff at the start?

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Lawyers don’t write this way because federal court rules require bland introductions.  For example, the U.S. District Court for the Southern District of New York says only that the memorandum of law supporting a motion must “set[ ] forth the cases and other authorities relied upon in support of the motion, and [be] divided, under appropriate headings, into as many parts as there are issues to be determined.¹ The D.D.C. local rules are similarly broad: “Each motion shall include or be accompanied by a statement of the specific points of law and authority that support the motion, including where appropriate a concise statement of facts.”²  And so on.  I know of no district court that requires the standard “now comes” language. And its persistence is odd.

I’m not alone in thinking so.  Brian Garner, legal writing guru and editor of Black’s Law Dictionary, has criticized briefs with introductions like this for being “all middle.”  As he wrote in his 1999 article in Trial, “[i]f you’re writing that way, you’re not thinking about [one of] the most critical parts of the brief: the beginning.”³

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An effective introduction looks much different. As an example, what if opening of the Generic Corp brief above read like this:

After a night at the bar, John Doe drove onto a ferry operated by Generic Corporation near the center of town.  He’d had more than a “couple beers” and had difficulty stopping, plowing through the ferry’s guardrail and into the river.  Doe sued Generic because the guardrail was not built to withstand impact with a car traveling at 40 miles an hour.  Because Doe has presented no evidence of negligence on Generic’s part, the Court should grant Generic’s motion for summary judgment.

Which brief would you want to read? I’m willing to bet the answer is the second one, even if it won’t win a Pulitzer Prize in literature.

The new introduction strips the key issue to its essentials.  The reader knows what the case is about, why the parties are arguing, and why Generic thinks it should win.  And it isn’t easy to write.

A couple things will help though.

First, spend a lot of time thinking about your argument before you put pen to paper.  William Zinsser writes that “[c]lear thinking becomes clear writing; one can’t exist without the other.”⁴ And that is especially true for introductions.  It is impossible to compress an argument into a capsule summary until you have a thorough understanding of the facts, the law, and what you want to do with both.  Indeed, it is often easier to write the introduction last (when you have a firmer grasp of your points) instead of first.

Second, strip your argument to its core.  Most issues and most significant briefs will involve nuance and sub-issues.  And you shouldn’t overwrite an introduction that suggests otherwise.  At the same time, though, the introduction is not the place to set out every complexity in the case.  Give the reader the reason you win in the end up front; address the complicating factors in the argument section.

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You may have noticed a few other things about the second introduction, too:

• The sentences are shorter and written in plain, simple English—not legalese. 

• Party titles (e.g., “plaintiff,” “defendant”) were replaced by party names, which not only make for a better story but are easier to remember. 

• Parenthetical definitions (“hereinafter,” whatever) are gone because they were never necessary.  There is only one Generic Corporation in the case.  No one will be confused if you just shorten it to “Generic.”  If Justice Kagan, unambiguously one of the Supreme Court’s best writers, does not feel the need to use parenthetical definitions, you probably don’t need them either.⁵

• This brief writer also did not feel the need to tell the court that Generic had a lawyer (“by and through undersigned counsel”).  She trusted the cover page and signature block to do that. 

• And the introduction is concise:  there is not a word to spare.  For a larger or more complex case, your introduction may be several paragraphs long — perhaps even a full page.  But the idea is the same.

These features mark the brief-writer as someone who has spent a long time turning the issues over in her mind.  In fact, I’m willing to bet the rest of the second brief is better than the first, too, because of the time spent developing this simple, elevator-pitch version of her argument.

In a beige expanse of ordinary briefs with the same introduction, this one will likely stand out as a brief that will be interesting and enjoyable to read.  And earning the ear of the reader is the first step to persuasion.

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If you’re still not persuaded, consider two introductions from recent appellate decisions:

First, Judge Kethledge’s decision in Ackerman v. USDA, 995 F.3d 528:

“To recite the facts in this case is essentially to decide it. The short version is that an agency within the Department of Agriculture summarily approved a proposed plan for dry-bean crop insurance in Michigan based upon the mistaken belief that the terms of the proposed endorsement for the Michigan policy were identical to the terms of the endorsement for a Minnesota policy that the agency had approved the year before. But the terms of the two endorsements were quite different, because the Michigan endorsement contained a different pricing mechanism—for determining the beans’ ‘harvest price’—than the mechanism the agency had approved as part of the Minnesota endorsement. That difference later caused significant harm to Michigan farmers who had purchased the coverage, some of whom then brought this suit. In the district court, the government compounded the agency's mistake when it mistakenly told the district court that the pricing mechanisms in the Michigan and Minnesota endorsements were the same. Based in part upon that representation, the district court granted summary judgment to the government. On appeal, the government's brief unhelpfully elides both mistakes rather than acknowledge them; but Plaintiffs’ counsel on appeal has made the existence of those mistakes clear enough. We therefore reverse in part the district court's grant of summary judgment.”

Then, Judge Thompson’s opinion in Rhode Island v. Shell Oil Products, 979 F.3d 50:

Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products' true risks.

Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island's motion for remand.

The oil companies appealed the district court's order to us and a heated debate ensued over the scope of our review.

These introductions not only follow (almost) all the pointers above, they also start off with a snappy (and memorable) opening line. And they prove you don’t have to give up your own style to do it: Though Judge Kethledge’s writing reads much differently than Judge Thompson’s, both leave you wanting to read more.

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In the end, no court is going to rule against you based on a boring introduction.  But you shouldn’t waste the most valuable real estate on the page just because your filing won’t be rejected if you do.  Start with a bang:  A broken arm, Boo Radley, and Atticus Finch — there is a reason the font credits for the book come at the end.

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Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.

1. SDNY, Local Rule 7.1(a)(2).

2. DDC, Local Rule 7(a).

3. Bryan A. Garner, The Three Parts of a Brief (Trial 1999), reprinted in Garner on Language and Writing 108, 108 (2009).

4. id.

5. William Zinsser, On Writing Well 8 (7th ed. 2006).