ABA Section of Litigation 2012 Section Annual Conference April 18-20, 2012:

The D.C. Circuit: A Fascinating Court with Great Influence

WRITING TO WIN: THE ART
AND SCIENCE OF COMPELLING
WRITTEN ADVOCACY














Lawrence D. Rosenberg
Partner, Jones Day
Washington, DC



INTRODUCTION
Writing a winning legal argument can often be the most
important single element in a case. In this era of fewer and fewer
jury trials, the prevalence of summary judgment, and endgame
strategies more often focusing on appellate courts, a lawyers skill
in writing a winning legal argument whether before a trial judge
or on appeal may well dictate whether the client wins or loses.
That is not to say that all of the other facets of litigation, including
discovery, oral argument, trial presentation, etc., are unimportant,
but in some cases writing a winning legal argument may be the
most crucial.
Fortunately, writing an excellent legal argument is not
extremely difficult. While it takes care, focus and a good amount
of hard work, it is certainly possible to write a winning legal
argument by following the key, straightforward principles of
effective written advocacy. This article sets forth a number of
approaches, strategies and tips for developing and writing winning
legal arguments. It looks at several important steps in preparing to
write a compelling legal argument and then examines the key
dos and donts of brief writing. Along the way, it includes a
number of examples of effective and ineffective written advocacy.
THE KEY STEPS IN PREPARING TO
WRITE A WINNING ARGUMENT
Writing a winning argument takes a significant amount of
preparation. While it is difficult to write anything very well
without a lot of thought, it is particularly hard to write a focused,
compelling legal argument without having first considered most of
the likely content of the document. The following are the most
important, critical steps in preparing to write an outstanding and
persuasive legal argument.
Analyze the case. First, while this probably goes without
saying, it is essential when considering any written legal argument
to begin by analyzing and thinking about the case. Even before
reading documents and deposition transcripts or researching legal
issues, it is important to spend some time (often several hours or
perhaps even a day or two) reviewing the decision from the trial
court, the complaint, any answer, any memoranda evaluating the
claims in the case, and any other fundamental pleadings or
analyses to understand what the important issues are in the case
and what kinds of arguments have the potential to convince a judge
or panel of judges regarding the issue(s) about which you are
contemplating writing an argument. Certainly, if you are planning
on writing a dispositive motion or an appeal brief, it is necessary to
have carefully thought about the case before doing anything else.
But even if you are writing a motion to exclude the testimony of an
expert, or to compel discovery, it is very helpful to look at the case
as a whole, determine the key issues in the case, and develop a
sense for how the argument you are considering will fit into the
rest of the case. At this point, it is also helpful to make a very
preliminary list of the issues that you are beginning to consider for
you argument.
Examine the relevant parts of the record. The next step
in preparing to write a legal argument is to review thoroughly the
parts of the record relevant to the argument that you are
considering. In determining the content of your argument, it is
very important to review all of the materials that contain factual
information that may affect the argument. Therefore, if you are
writing a motion to compel discovery, after having analyzed the
case, you would need to examine all of the discovery requests and
responses in the case, any relevant documents produced in the case,
and any relevant deposition testimony. If you are writing a
summary judgment brief, you would need to review all of the
written discovery requests and responses in the case, all relevant
produced documents and deposition testimony, and all of the prior
pleadings and motions in the case; of course, you would also need
to review any prior decisions by the court in your case. If you are
writing an appeal brief, you would also need to examine the entire
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trial transcript (if there is one) and all relevant exhibits admitted at
trial as well as all pretrial and post trial briefs and rulings from the
trial court. While such review can be time consuming, it really is
essential to preparing a written argument that will persuade a judge
or appellate panel that will either have first hand knowledge of the
details of the record of the case or at least access to the entire
record and law clerks who are likely to examine the parts of the
record that they feel are relevant to your argument.
Preliminarily identify your theme and the issue or issues
that you will address in your argument. Once you have
analyzed the case and reviewed the relevant parts of the record,
you should begin to get a pretty good idea of the issue or issues
that you will address in your argument. To be sure, it may be
easier to identify the issue if you are preparing a discovery or
evidentiary motion. But you should attempt to identify the issues
you will address even if you are preparing a summary judgment
motion or an appeal brief. While you may abandon certain issues
and adopt other issues as the writing process progresses, you want
to have as good an idea as possible of the main issues before you
undertake extensive research or spend a lot of time drafting. At
this point, it is helpful to draft a one or two sentence statement of
each issue that you are considering.
You should also begin to consider the theme of your brief
and how it ties to the central issues in the case. You should tailor
your theme to your audience and the stage of proceedings of your
case. Thus, if your brief supports an evidentiary or a discovery
motion, a straight-forward theme is ideal. If you are seeking to
exclude the testimony of an expert witness, an effective theme
could be the experts methodology is fatally flawed. Or if you
are moving to compel privileged material, an effective theme could
be there is no valid privilege claim because the documents in
question are neither relevant to nor provide attorney-client advice.
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If your brief supports a summary judgment motion, a
broader theme could be appropriate. Thus, in a breach of contract
case, an appropriate theme could be as a matter of law, the
contract authorized defendants conduct or because it is
undisputed that defendant provided plaintiff with advance written
notice that it would use parts from a new manufacturer, no
reasonable jury could find that defendant failed to comply with the
relevant contractual provisions on substitution of the
manufacturer. In an antitrust case, an effective theme could be
there could not be any conspiracy as a matter of law because
defendants had a genuine agency relationship and were not
independent economic actors. In a patent case, an appropriate
theme could be no reasonable jury could find infringement in
light of the parties stipulated construction that a square peg as
used in the relevant claims could not fit into a round hole, such as
the hole used in the accused products.
You should bear in mind that when communicating to a
judge or panel of judges, jury arguments or blatant appeals to
emotion are less likely to be effective themes than those that
specifically address the relevant law and facts. Thus a theme such
as this is a case about greed, while potentially effective in a jury
trial, is unlikely to be your most effective theme in a written
argument.
Other considerations are relevant to appellate briefs. It is
critical to realize that appellate courts do not sit as super juries and
are not likely to reverse a jury verdict or even trial court findings
on the ground that they are unsupported by the evidence or clearly
erroneous. Thus, if you are appealing an adverse judgment, if
possible, you want to identify legal errors made by the court below
that you can argue infected the factual determinations, jury
instructions, or evidentiary rulings made or given by the trial court.
The old adage that you dont want to retry on appeal the case you
tried and lost is particularly apt. For example, in a criminal case,
claims of evidentiary insufficiency, while occasionally successful,
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are notoriously difficult to win on appeal. An argument that is
much more likely to prevail is that critical evidence was
mistakenly admitted or excluded or that the jury was given a
seriously flawed jury instruction. Similarly, in a patent case, it is
very difficult to prevail on an argument that the jury mistakenly
credited the testimony of one partys incredible expert. But it is
much more promising to argue that the court improperly construed
the patent claims in issue or misapplied the law of obviousness or
contributory infringement. Likewise, in a contract case, the odds
are poor that you will convince an appellate court that no
reasonable jury could have construed the parol evidence to support
the adverse judgment. But you have a much better chance to
prevail on an argument that the contract was unambiguous and
parole evidence should have been excluded.
Accordingly, for the appellant, themes such as the trial
court misconstrued the applicable statute by ignoring its plain
language, structure, legislative history and underlying purpose or
the trial courts pervasive and erroneous legal and evidentiary
rulings prevented the defendant from presenting its defense could
be effective.
To be sure, the arguments that you raise on appeal must
have been preserved. But that does not mean that they must have
been the main event in the trial court. An argument that was one
of several presented in support of an unsuccessful summary
judgment motion may be much more persuasive on appeal than
one based on the most important ruling made at trial. Moreover,
you may choose to spin an argument differently on appeal than it
was below. For example, an argument made before the trial court
that a piece of hearsay evidence should be admitted because it is
inherently reliable and it would be unfair to exclude it in light of
other rulings admitting similar hearsay evidence offered by the
other side could evolve on appeal into an argument that the trial
court destroyed the fundamental fairness of the trial by excluding
perhaps the most critical evidence to your side. You have to be
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careful that your spin on an argument isnt so far afield that it
invites a response that the argument was not fairly presented to the
trial court. But a properly preserved argument can really take on
new and vibrant life on appeal.
When you are defending a favorable judgment, you will
usually want to defend the judgment with vigor. Particularly if the
standard of review is favorable, you will want to emphasize the
reasonableness, clarity and persuasiveness of the ruling that you
are defending. You may want to characterize your opponents
arguments as retreads that were fully considered and rejected
below, or else as mischaracterizations of the law and/or facts.
Thus, effective themes for the appellee could include The trial
court made careful, evidence-specific admissibility rulings that
should not be disturbed on appeal, or The record was replete
with sufficient and detailed evidence supporting the jurys
verdict.
Even when defending a favorable judgment, there is a need
for skill and creativity. Thus, you shouldnt merely parrot the
ultimately winning briefs below. You may be able to better
explain the rationale supporting an affirmance. You may find
better authorities that support your position. And you may be able
to better convey the broader consequences of a decision in your
favor.
In very rare cases, an appellate advocate may determine
that a favorable ruling cannot persuasively be defended based on
the rationale of the trial court. In such instances, you would
usually be well served to defend that decision below as best you
can, but also to provide alternative rationales that support the
ruling. So long as the arguments you make are fairly supported by
the record, you can defend the judgment on any ground.
Research the law pertaining to the issues you have
identified. Once you have preliminarily identified the issues that
you think you are likely to raise and begun to craft your theme, the
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next step is to comprehensively research the law pertaining to
those issues. This part of the process may be undertaken by the
lawyer ultimately responsible for the written argument under
consideration or it may be undertaken by several lawyers working
with or under the guidance of the responsible lawyer. In all events,
it is critical that the key issues are very carefully examined. The
most helpful authorities will be statutes or cases that directly
govern the issues about which you are concerned. If there is not a
statute or case that directly controls, the next best authority may be
a controlling case that addresses a different but analogous issue or
has pertinent and helpful language, a non-controlling factually
similar case from a lower court or different jurisdiction, or an
administrative regulation that speaks to the relevant issue. Other
helpful authorities may be non-controlling cases that address
different but analogous issues, legislative history, treatises, law
review articles, dictionaries, and other sources that can help
develop your argument. When undertaking your primary research,
it is important to make sure that you plan to rely, not merely on
helpful language in a case or the legal rule that a case sets forth,
but also upon how that language or rule was specifically applied to
the facts in the case. Ultimately, the most persuasive authorities
are those that articulate or adopt the legal rule that you advocate
and then apply it to similar facts and reach the result that you
advocate should be reached in your case. To be sure, there may be
instances, such as in interpretation of a statute, where sources like
legislative history or dictionaries may be more prominent than
most cases would be in supporting your argument. But for the
most part, it is the similarity of the application and outcome of the
rule you advocate that will persuade judges to rule in your favor.
It is important not to rely on a single research method, such
as computer searches. While it is possible that you may find most
of the key authorities regarding your issue by performing only a
single search method, it is also quite possible that you may miss
one or more of the most pertinent authorities. It is usually ideal to
begin your research by examining a treatise or a law review or
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similar article that addresses the issue that you are researching.
Such an examination will likely lead you to many of the authorities
that you need. It is also beneficial to examine the relevant practice
digest(s) that include the issue you are researching. For statutory
research, it is usually helpful to consult the annotated version of
the statute at issue. After you have reviewed such sources, it
usually makes sense to supplement your research with computer
searches. Unfortunately, it is far too common for a lawyer to miss
important authorities by relying solely on either book research or
computer research.
Complete your secondary research. Once you have
carefully researched the primary issues in the case or with which
you are concerned, it is often helpful to complete research on
secondary issues. These might include the applicable standard of
review on appeal or for summary judgment, general statements
about the desirability of resolving certain issues by way of legal
motion, and analogous areas of the law upon which you may wish
to rely. While it is possible to complete such research at a later
stage of the writing process, I have found that completing as much
of the research as possible before undertaking any extensive
drafting usually makes the drafting process go more smoothly.
Select the issues you that you will present. After having
completed your research, it is a good idea to revisit your
preliminary list of issues and refine that list. You may abandon
one or more issues that are unlikely to be the basis for a persuasive
legal argument. You may add one or more issues that your
research has led you to consider. Think very carefully about these
issues because they will serve as the foundation for your legal
argument. You should also revise your prior descriptions of each
issue that you had previously considered and draft one or two
sentences defining each new issue that you intend to present. You
may very well edit or alter your definition or abandon an issue at a
later stage of the drafting process, but it is beneficial to have a
clear idea of the composition of your issues before you begin to
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draft your outline. You should also be very careful about the
number of issues you select. As a general rule, presenting more
than three issues in any brief runs the risk of signaling to the court
that none of your issues has merit. While in an exceptional case, I
have seen four or even five issues persuasively presented on an
appeal, I have also seen many cases in which one or two legitimate
issues were lost in a sea of several other weak or frivolous issues.
Draft a focused outline. In my view, one of the most
critical steps in writing a winning legal argument is carefully
developing a focused outline of your brief or other document. I
typically recommend using the outlining process to develop the
theme or themes of your written argument, to highlight the most
important facts that you want to set forth in your document, the
issues that you want to address, and the primary components of the
arguments that you want to present. Therefore, it is usually helpful
to include in your outline a description of the introduction and
theme to your argument, the most important facts that you want to
include in your written presentation, the point headings and
subheadings for the argument section of your brief or document,
the key cases and other authorities upon which you plan to rely
(and ideally a one sentence description of each critical point from
each authority), and at least a brief description of how you plan to
apply the authorities to each issue that you plan to address. While
there is no magic formula for how long such an outline should be,
and it will vary depending on the length of your written
presentation, an outline of 1-2 pages will often suffice for a single
issue motion like a straightforward motion to compel, but an
outline of 3-4 pages may be more appropriate for a summary
judgment motion or an appellate brief. Occasionally, outlines of 5-
6 pages may be warranted in a particularly complicated matter.
Once you get much beyond that, however, your outline begins to
resemble a first draft more than a true outline. If there are more
than one lawyer working on the case, it is very helpful to circulate
your outline and get feedback on it before beginning to draft your
brief or document in earnest. Particularly, if there are more senior
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lawyers working on the case, circulating an outline is an excellent
opportunity to make sure that everyone is reasonably in agreement
as to the approach to the brief before you have spent many hours
drafting an argument that others may believe is unlikely to be
persuasive.
GENERAL CONVENTIONS FOR EXCELLENT
LEGAL WRITING
Before suggesting specific approaches to the different
sections of a brief or similar legal document, it is important to
discuss certain general conventions for excellent legal writing.
1. Always employ respectful and appropriate language.
While this point should be obvious, I have observed a significant
amount of legal writing (including from experienced attorneys)
that does not evidence the appropriate respect and decorum
necessary for formal writing that is intended to persuade a judge or
panel of judges. Of course, you should never submit something
like the following document:




But overblown rhetoric, the use of ad hominem attacks on
opposing counsel or the opposing party, excessive and unjustified
indignation, or merely insulting or snippy comments are just as
ineffective. A winning legal argument is virtually always
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comprised of temperate, respectful language that has persuasive
value based on its content rather than its tone.
2. Use simple, clear language and relatively short sentences.
Almost all good writing uses straightforward and understandable
language. Clear and direct language is even more important for
excellent legal writing. While some lawyers feel that it is
impressive or somehow more persuasive to use jargon, large
uncommon words, or convoluted phrases, such devices are usually
unhelpful and off-putting. One of my colleagues suggested long
ago that it is most advantageous to use language that any high
school graduate would readily understand and to avoid language
that invites reference to a dictionary or thesaurus. Similarly, it is
best to avoid long, complicated, and/or run-on sentences. A
complex thought can usually best be expressed through a series of
short, declarative sentences, rather than a run-on sentence with
multiple clauses. Even though it may be tempting to demonstrate
your broad vocabulary and ability to perform word gymnastics,
such tactics are much less likely to be effective than they are to
irritate or confuse the reader.
3. Develop focused paragraphs with appropriate topic
sentences. J ust as unclear language and run-on sentences may
confuse a reader, unfocused paragraphs or those lacking a clear
point or topic are unlikely to advance your argument. Whether you
are writing a factual summary or describing controlling precedent,
use a clear topic sentence and then develop each paragraph so that
it logically flows from your topic sentence. If you wish to
transition to another point or thought, it is generally best to begin a
new paragraph. With that said, it can be effective to list a few
supporting points within a single paragraph by using transitions
such as first, and second. For example:
The cases cited by plaintiff are unavailing for
several reasons. First, none of those cases addresses
the language of the controlling statute. Rather,
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those cases all involve common-law doctrines that
are inapplicable here. Second, those cases all
predate the Supreme Courts recent decisions
interpreting the controlling statute, and are therefore
unreliable
But in all events, keep your writing focused and clear.
4. Avoid footnotes in most circumstances. Certain legal
writing teachers claim that it is helpful to use footnotes for
citations and less important factual or legal points. My experience
and understanding is that that vast majority of judges, and likely
the vast majority of the best practicing legal writers, disagree and
find footnotes almost always more distracting than they are worth.
It is virtually always easier to read a citation in the text of a
document than to search the bottom of a page (or worse, in the case
of endnotes, the last few pages of the document). And if a factual
point or legal argument is not significant enough to be in the text
of your brief, you should question whether it should be omitted
entirely. To be sure, many excellent legal writers have different
perspectives on this issue, and some regularly employ footnotes in
certain circumstances. In my view, the only circumstances in
which you should consider using a footnote are (i) when it would
be distracting to state a necessary but substantively insignificant
point something such as Intervenor incorporates and adopts the
Statement of the Case set forth in Petitioners Brief at the
beginning of a Supplemental Statement of the Case; (ii) where you
wish to include the citation of many cases from non-controlling
jurisdictions, such as where you want to show that all or many of
the federal appellate courts agree with your position and you want
to cite them following an Accord or See also signal; or (iii) where
you feel compelled to include a point that is particularly tangential
and distracting, such as a cases lengthy prior or subsequent history
or the history of amendments to a statute. Accordingly, footnotes
should virtually never be used to include facts relevant to your case
or subsidiary legal arguments. Simply put, if the factual point or
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5. Do not under any circumstance misrepresent or overclaim
any fact or legal authority. A critical component of the
persuasive value of a written argument is the credibility of the
author. Any misrepresentation or inaccurate portrayal of a fact or
authority in your document is likely to destroy that credibility. As
one well-respected advocate put it:
The four outstanding donts for brief-writers, in my
judgment, are (a) inexcusable inaccuracy; (b)
unsupported hyperbole; (c) unwarranted screaming;
and (d) personalities and scandalous matter. They
are donts, not only from the point of view of ones
own professional standards and self-respect, but
also from the narrow aspect of intelligent self-
interest; every one of these faults is bound to
backfire and most unpleasantly.
Frederick Bernays Wiener, Effective Appellate Advocacy 149
(ABA Publishing, Rev. ed. 2004). If you always fairly and
accurately describe the facts of your case and the authorities you
rely upon (and avoid intemperate rhetoric as previously suggested),
you will not have to worry that you may lose as a result of your
own missteps rather than the substance of your arguments.
6. Consider using helpful demonstrative aids. A picture can
be worth a thousand words (and will sometimes save that many
words). While many excellent legal writers would never think to
use demonstrative aids in a brief (particularly an appellate brief), a
timeline, chart, diagram, table or even a picture can sometimes add
immeasurably to the persuasiveness and clarity of an argument.
For example, intellectual property lawyers have used such devices
to great effect in trial court briefs, and in appellate briefs in patent
cases in the U.S. Court of Appeals for the Federal Circuit. But
such demonstratives can be usefully employed in many other cases.
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Under the ADEA, a judicial complaint must be
dismissed for failure to exhaust administrative
remedies if a supporting EEOC charge was not filed
within 300 days of notification to the employee of
the adverse employment action. See 29 U.S.C.
626(d)(2) (grievant claiming violation of the ADEA
must exhaust his administrative remedies with the
EEOC before filing a judicial action); Armstrong v.
Martin Marietta Corp., 138 F.3d 1374, 1392-93
(11th Cir. 1998) (en banc). Moreover, as amended
by the Civil Rights Act of 1991, the ADEA requires
that a judicial complaint be filed within 90 days of
either receipt of a notice that a charge filed with
the [EEOC] under [the ADEA] is dismissed or [that]
the proceedings of the [EEOC] are terminated by
the [EEOC], Sperling v. Hoffman-La Roche, Inc.,
24 F.3d 463, 464n.1 (3d Cir. 1994) (first, fourth,
and fifth brackets in original), or, if a collective
action has been filed, within no more than 90 days
of the date that certification is denied or that any
conditionally certified classes are decertified. See
Armstrong, 138 F.3d at 1391-92.
As the following chart illustrates, Ruehl failed to satisfy
both of these requirements:

Sep 1997 Jan 1998 May 1998 Sep 1998 Jan 1999 May 1999 Jan 2001 Jan 2003 May 2003 Sep 2003 Jan 2004
347 Days
Dec 21, 1998
Mueller & Bellas
EEOC charges
filed
Aug 13, 1999
Mueller class
action complaint
Mar 28, 2001
Ruehl opts into
Mueller subclass
Mar 20, 2003
Notice to opt-ins of
decertification of Mueller
subclasses
Oct 14, 2003
Ruehl EEOC
charge filed
Jan 20, 2004
Ruehl judicial
complaint
Aug 31, 1998
Ruehl termination
effective & separation
agreement
306 Days
Dec 10, 1997
Ruehl notified that
he would be
terminated
376 Days



Although Ruehl had notice that he would be separated from
employment on August 31, 1998 by as early as December 10, 1997,
he did not file an EEOC charge until October 14, 2003. Thus,
Ruehl did not file his charge until more than 5 years after his
employment was terminated, well after the 300-day charge filing
period had expired. Indeed, given that Ruehl was notified as early
as December 10, 1997 that he would be terminated, Ruehls 300-
day charge-filing period expired even before Mueller and Bellas
filed their EEOC charges on December 21, 1998; and given his
August 31, 1998 effective-termination date, Ruehls 300-day
charge-filing period had plainly run by no later than J une 27,
1999i.e., well before Mueller and Bellas filed their putative
collective action on August 13, 1999. Therefore, Ruehls EEOC
charge is plainly untimely.
Furthermore, Ruehls judicial complaint is also untimely.
The untimely EEOC charge makes the judicial complaint untimely
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as well. Moreover, Mueller and Bellas filed their collective action
90 days after the EEOC completed processing their own charges;
and the notice date of the district courts decertification of the
Mueller collective action was March 20, 2003. But Ruehl did not
file his judicial complaint until J anuary 20, 2004, more than 6
months later. That complaint was thus filed well beyond the 90-
day deadline for any lawsuit based on the charges of Mueller and
Bellas.
7. Review the rules of the court in which your case is pending.
It is, of course, necessary that you know the basic federal or state
rules of procedure that apply in your case. Those will contain
many of the rules governing your brief or document and what may
or may not be required or appropriate to include. But many state
and federal courts themselves have their own nuances with respect
to the rules of procedure. It is therefore critical that you also know
those local and/or chambers rules and tailor your written
argument to conform to them. It is difficult to prevail on your
brilliant legal argument if your brief gets bounced by the Clerks
Office.
8. Edit carefully. Always carefully edit your drafts. While
theoretically possible, it is unlikely that you will get it exactly right
the first time. Some writers go through a dozen or more drafts in
the course of writing a legal argument; others may only work
through a few. But virtually all good legal writers go through each
draft in a focused effort to improve, tighten and polish their
arguments. The editing process should include a rigorous
assessment of your briefs structure, persuasiveness, language and
syntax. As part of this process, you should also proofread very
carefully. Always run a computer spell check, but also examine
grammar, syntax and spelling yourself. You should also always
check and double-check to make sure that you have included all
portions of your document that are required by the rules of the
court in which your case is pending (e.g., statement of facts or
jurisdiction, summary of argument, statement of related cases, etc.).
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It is also helpful during the editing process to have other
lawyers read a draft of your brief, particularly those who have not
worked closely with you on the case. In a large law firm or
government office, it may be fairly easy to have a colleague review
your draft. In other settings, it may be more difficult. But your
argument will almost always improve when others with a fresh
perspective have considered it. I recall an instance many years ago
when I was working on a Supreme Court brief with several
colleagues. One of our colleagues who had not worked on the brief
reviewed a draft and convinced the rest of us entirely to restructure
the brief in a way that ultimately made it much more readable and
persuasive.
PUTTING TOGETHER A WINNING LEGAL ARGUMENT
Bearing in mind the general conventions of excellent legal
writing and having completed your research, analysis, outline, and
other preparations, it is time to start drafting your brief or legal
document. Lets examine each of the components of a winning
brief, motion or similar persuasive legal document.
Statement of the Issues Presented
In an appellate brief, you will usually be required to include
a formal statement of the issues or questions presented and it will
normally be the first substantive portion of your brief. Most trial
court rules do not require a formal statement of the issues for either
motions or briefs. While I dont think that you need to include a
formal statement of the issues in a trial court brief, I do think it is
essential to include a clear description of the issues in the
introduction or preliminary statement to a trial court brief. It is
critical within the first one or two paragraphs to clearly set forth
for a trial court what the issue(s) are and what relief you seek.
Your statement should incorporate the following principles:
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Clearly and accurately state each issue. It is essential both
for your credibility and for the persuasive value of your argument
to rigorously define the issue(s) that you will present.
Use language that is likely to elicit a favorable response.
Your advocacy begins with the definition of the issue(s) that you
are presenting to the court. You should define each issue such that
the court may be persuaded in some fashion by the definition alone.
For example, it is more effective to frame an issue as: Whether
the agency reasonably denied relief where the requested relief
would have been inconsistent with decades of agency precedent
and would have resulted in an unwarranted windfall for the
petitioner, than merely as Whether the agency erred in denying
relief.
Frame the issue(s) with whatever background material is
necessary. In a trial court brief, it is often most effective to
provide a paragraph or so of context before defining the issue for
the court. While the practice has not always been followed in
appellate courts, it is now becoming more common to do the same
thing in appellate and U.S. Supreme Court briefs. A good recent
example of this is as follows:
A divided panel of the Court of Appeals for the
Third Circuit held that a district court must first
conclusively determine if it has personal jurisdiction
over the defendant before it may dismiss the suit on
the ground of forum non conveniens. The court
acknowledged that its holding was inconsistent with
the interests of judicial economy, recognized that its
decision in the case deepened an already-existing 4-
2 split among the circuits, and invited this Courts
review.
The question presented is:
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Whether a district court must first conclusively
establish jurisdiction before dismissing a suit on the
ground of forum non conveniens?
Unfortunately, the opposing brief neither provided any
context nor accurately stated the question. That brief stated:
The question presented is:
Whether a district court should establish
jurisdiction before dismissing a suit on grounds of
forum non conveniens?
A hypothetical case. To illustrate some of the principles
of excellent brief writing, consider the following hypothetical case.
Your client, Pharma, a major U.S. pharmaceutical company, makes
Happynol, a nextgen anti-depressant. A well-known
pharmaceutical entrepreneur, Dr. Evil, has been importing and
selling a very similar drug, Euphorizem, that is made outside the
U.S. and allegedly uses a different, but remarkably effective, active
ingredient. Both drugs are patented Happynol in the U.S.,
Euphorizem in the EU. Both drugs are sold at high prices.
Consumer plaintiffs have brought suit alleging that Pharma and Dr.
Evil have conspired to fix prices in violation of the Sherman Act
and have suffered cognizable damages under the Clayton Act.
The issue presented. Suppose that the district court had
granted summary judgment on the ground that no reasonable jury
could find that there had been direct dealings between Pharma and
Dr. Evil sufficient to establish a price-fixing conspiracy and
emphasized that there was no evidence in the record that Pharma
and Dr. Evil had directly communicated with each other. On
appeal, you could phrase the issue presented as: Are plaintiffs
correct that there is sufficient evidence in the record such that a
reasonable jury could find that there existed a conspiracy by
defendants to fix prices? Such a statement, however, fails to
mention the district courts ruling in your clients favor or the lack
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of evidence in the record that the defendants had directly
communicated with each other and casts the issue in the best light
for plaintiffs. A more effective statement would be: Whether the
district court erroneously determined that plaintiffs had failed to
proffer sufficient evidence that a reasonable jury could have found
that Pharma and Dr. Evil, who never directly communicated with
each other, nevertheless conspired to fix prices. Some advocates
strenuously oppose beginning a statement of the issue or question
presented with the word whether; a good alternative to consider
here would be to start with Did the district court erroneously
determine . . . .
Statement of the Case and Facts
The statement of the case and facts is not merely a
necessary part of your brief, it is an excellent opportunity for
advocacy.
The statement of facts is as important as any
portion of the brief. The statement should be
written, rewritten, and then rewritten again before
being placed in final form. The statement is
designed to inform. But a good statement does
more; it engages the readers interest, making the
judge look forward to working on the case. The
statement of facts tells the story of your case. This
does not give you a license to embellish or to throw
in irrelevant but juicy facts to liven up the plot.
Stick to the essentials. But remember, it is not
unconstitutional to be interesting.
Ruggero J . Aldisert, Winning on Appeal: Better Briefs and Oral
Argument 163 (National Institute for Trial Advocacy 2d ed., 2003);
see also J ustice Robert H. J ackson, Advocacy Before the Supreme
Court, 37 A.B.A. J . 801, 803 (1951) (It may sound paradoxical,
but most contentions of law are won or lost on the facts. The facts
often incline a judge to one side or the other.).
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There are several specific things that you can do to make a
statement of the facts compelling and persuasive:
Follow chronological order. Many poor statements of facts
result from the common mistake of structuring the statement by
topic or witness. While such a structure can seem logical and may
even shorten the statement a bit, it does not result in a compelling
story. You should start from the beginning and craft the statement
as a narrative, building each new fact upon those already described.
Typically, you can break up the statement into the background
facts and the procedural history of the case. If you do so, you can
create a compelling chronological description of everything
relevant that has happened both before and after the case was filed.
Adhere to a chronological structure even if you have to
include a separate Statement of the Case. In many appellate
courts, you are required to have a separate Statement of the Case
that must precede the Statement of Facts. If so, my
recommendation is not to abandon a chronological structure.
Rather, you can draft a pointed one to two paragraph statement that
relays the critical procedural events of the case, but does not
attempt to address them in detail. Leave the detail for the
procedural history section of your Statement of the Facts. Thus, an
effective Statement of the Case could read like this:
Pharma makes many drugs that have improved the
lives of millions of consumers. Pharmas research
into new and improved drugs costs hundreds of
millions of dollars per year. Prices for drugs with
significantly improved efficacy necessarily reflect
those costs. Pharmas new anti-depressant,
Happynol, along with Dr. Evils new anti-
depressant, Euphorizem, are more effective than
prior-generation drugs. Both are patented and
reflect years and millions of dollars of research.
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Accordingly, they are more expensive than older,
less-expensive drugs.
In March 2005, plaintiffs, a class of consumers of
Happynol and Euphorizem filed suit claiming that
Pharma and Dr. Evil conspired to fix the prices of
these drugs. After expedited discovery, in February
2006, Pharma and Dr. Evil moved for summary
judgment on grounds that (1) there is no evidence of
any communications between Pharma and Dr. Evil
that could have given rise to a conspiracy to fix
prices, and (2) Pharma and Dr. Evil lack market
power because of the availability alternative
products. On September 15, 2006, the district court
granted summary judgment on the ground that
plaintiffs have not proffered any evidence of
communications between Pharma and Dr. Evil that
could have given rise to a conspiracy to fix prices;
the court did not reach the market power issue. On
December 10, 2006, plaintiffs filed a timely notice
of appeal.
Tell a compelling story. A corollary to structuring your
statement chronologically is that you should tell a complete and
compelling story in your statement of facts.
A lawyer engaged in stating facts is telling a story, a
story the court should accept and understand as it
reads along, without having to supplement your
narrative by its own independent efforts. Or, to use
a different metaphor, the lawyer stating the facts is
painting a picture and those who look at that
picture should not be troubled by the details of how
the artist mixed his colors. To the extent that the
reader may want to check the facts of the story, or
the art-lover those of the picture, the record
- 23 -
references supply the necessary assurance that what
has been depicted is real and not imaginary.
Weiner at 35.
The idea is to relate the facts in such a way as to tell a
coherent story that casts your clients actions in a positive light and
will lead the court to adopt your clients perspective on the salient
details. You should select the facts that advance the story in a
meaningful way and avoid facts that are unimportant, distracting or,
unless central to the case, would not reflect well on your clients
actions. You should also be sure that no important details or
events are omitted. Your statement should give the reader all of
the key details needed to understand what happened and to
conclude that your client acted in a reasonable manner. It is
critical that, on the whole, your story makes sense and depicts the
actions of your client as fair and sensible.
Lawyers often question whether they should reveal bad
facts in their statement of the facts and attempt to address them,
even where the opposing party has not yet relied on them. That is
a difficult issue and entire books have been written on the subject.
My advice is that if a bad fact is so central to a case that it is sure
to be relied on by the opposition and it is sure to get the attention
of the court, it probably does make sense to address it as part of the
story you are telling. But it is not beneficial to pay too much
attention to that fact unless and until your opponent does. Thus, in
our hypothetical, if there is evidence in the record that Pharma and
Dr. Evil both attended the same pharmaceutical convention a
month before their new anti-depressants came on the market, it
could be addressed as follows:
None of Pharmas employees ever discussed
Happynol or Euphorizem with Dr. Evil. Dr. Evil
has never been seen in the presence of any of
Pharmas employees, and his business, personal and
cell phone records show that he has never called
- 24 -
any of Pharmas employees. Two of Parmas
executives, Dr. Strange and Dr. Love did attend
Medcon 2004 in Las Vegas, but they left the same
day that Dr. Evil arrived, did not attend any of the
same meetings or events, and were not seen
together by anyone; neither their hotel nor cell
phones were used to communicate with Dr. Evil.
If the bad fact is not central to the case, I would
recommend not addressing it at all until and unless your opponent
has raised it. Otherwise, it will appear as if you believe that it is
important and are sponsoring that fact. See generally, Robert H.
Klonoff & Paul L. Colby, Winning Jury Trials: Trial Tactics and
Sponsorship Strategy (National Institute for Trial Advocacy, 3d ed.
2007).
Be rigorously accurate. It bears repeating that it is critical to
be completely accurate in your description of the facts. To be sure,
you want to emphasize and highlight the facts that support your
story and reflect well on your clients actions. But you cannot in
any sense play fast and loose with the facts. It is also important
to cite the record to support each fact that you introduce. When
you are writing an appellate brief, you should try to cite to the trial
courts decision if you can for most facts because your panel and
their law clerks will certainly read the trial courts decision and
will assume that the trial courts description of the facts is accurate.
You should try to keep citations relatively unobtrusive by
abbreviating where possible. And, as previously discussed, you
should not place your citations in footnotes, which are quite
distracting.
Avoid any argument or editorializing. You will have plenty
of opportunity to argue the case. The statement of facts is not the
place to do it. Rather, the statement should not include any
argument or editorializing about the facts. Your credibility as an
advocate and the seriousness with which a court regards your
- 25 -
Carefully and completely set forth the procedural history.
Finally, be sure to include all elements of the procedural history
that are pertinent and helpful. Even if an event seems tangential to
your argument, such as transfer of the case or removal to federal
court in the distant past, it is usually helpful to give the court all of
the background that the court may wish to know. The last thing
you want to do is to confuse the court by omitting a detail that you
know about and think is insignificant, but which a judge or law
clerk wants to learn. If there has been a prior decision in the case,
seriously consider quoting helpful statements from such a decision.
Trial judges rarely are offended if you quote their earlier decisions
or those of their colleagues. Appellate judges are more likely to
rely on statements expressly made by trial judges than on your
paraphrasing. You should rely as much as you can on the language
of any prior decisions.
Introduction/Summary of the Argument
The introduction and/or summary of the argument are also
quite important components of your brief. For most trial court
motions and briefs, a formal summary of the argument is not
required. But an Introduction or Preliminary Statement section can
and should be used to accomplish the same things as a more formal
summary: introducing the theme of your argument, clearly
identifying the issue(s) presented, and summarizing your argument
as to each issue that you have raised. Thus, in trial court briefs and
motions, it is important to carefully write your Introduction or
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Preliminary Statement to accomplish all of those objectives. Again,
there is no magic formula for length or detail. A good general rule
of thumb is that your Introduction should rarely, if ever, be longer
than 10% of the total length of your brief 2 pages maximum for a
20 page brief, 5 pages for a 50 page brief. A good model is to
include one or two paragraphs setting forth the theme and defining
the issue(s) that you are addressing and then one paragraph
summarizing your argument for each issue that you raise.
In appellate briefs, the summary of argument will also state
your theme, make clear the issues you are raising, and summarize
your argument as to each issue. But there is one nuance to
consider. It has become more acceptable in appellate briefs to
include a short introduction prior to or in lieu of a statement of the
case that sets forth the theme of your argument and very briefly
describes the background of the case. An example based on our
hypothetical could be:
Anti-depressants have improved the quality of life
for millions of people. Pharma has spent millions
of dollars and years of research developing its
nextgen anti-depressant Happynol, which is more
effective for more people than most prior drugs.
Naturally, Pharmas substantial costs are reflected
in Happynols price. Dr. Evil markets a similar
nextgen anti-depressant, Euphorizem. None of
Pharmas employees have ever discussed the price
or marketing of Happynol or Euphorizem with Dr.
Evil, and there is no evidence in the record that
suggests otherwise. Furthermore, even though these
new drugs are innovative, there are numerous other
drugs available that can provide effective relief for
most people suffering from depression.
Plaintiffs urge that they have paid artificially high
prices for Happynol and Euphorizem and allege a
- 27 -
conspiracy to fix prices for those drugs. The district
court rejected plaintiffs unjustified assertions
because there is no evidence in the record from
which a reasonable jury could conclude that Pharma
and Dr. Evil ever communicated about, let alone
conspired about, the prices or marketing of
Happynol or Euphorizem. In addition, although the
district court did not reach the issue, Pharma is also
entitled to judgment as a matter of law that
defendants do not possess sufficient market power
to restrain trade. For both of these reasons, the
district courts grant of summary judgment should
be affirmed and plaintiffs attempt to obtain an
unwarranted windfall should be rejected.
There are several important guideposts for writing an
excellent introduction or summary of argument:
It is important to draft a powerful opening paragraph or
paragraphs. As the example above demonstrates, it is essential to
orient the court very quickly as to the theme of your argument, the
key issues, and the outcome you seek.
The introduction of your summary the exordium
in the schema of the rhetoricians must let the
reader know, in a few sentences, the scope, theme
content, and outcome of the brief. It sets the stage
for the discussion to follow. It dispatches your
argument to the reader at once in succinct, concise,
and minimal terms. It describes the equitable heart
of the appeal.
Aldisert at 184. The beginning of your introduction or summary
has to grab the court and concisely articulate why you should win.
You should summarize all of your key arguments. Many
ineffective summaries or introductions are either too spartan or
- 28 -
The summary is critical because it gives the reader a
concise preview of the argument. The summary
should be crafted so as to allow the judge to
construct a practical outline of a memorandum.
Alas, this often does not occur, because the brief
writer either has not prepared a summary or has
slapped one together without the thought necessary
to create a statement that is both comprehensive and
concise.
Aldisert at 183. As will be discussed in the argument section, your
summary paragraph for an issue should include a topic sentence
that defines the issue, a sentence or two that describes the
governing legal rule, a sentence or two that shows how that rule
applies to your case, and at least a sentence that describes the
outcome you seek with respect to that issue.
You may include citations, but keep them concise. While
an introduction or summary is not the place for a lengthy
discussion of the law, it may be appropriate to include a small
number of particularly important citations. For example, you may
wish to refer to a controlling case that is directly on point or to a
controlling case that has adopted the precise legal rule that you
advocate. But dont overdo it. It is rarely effective to cite more
than a few cases in an introduction or summary and it can get
unwieldy very easily.
An example of a summary paragraph based on our
hypothetical is:
The district courts ruling should also be affirmed
on the alternative ground that plaintiffs have failed
to prove that Pharma and Dr. Evil had market power
- 29 -
sufficient to restrain trade. A showing of market
power must include a definition of the relevant
market and proof that the market lacks sufficient
substitutes to offset any attempt to artificially raise
prices; in other words a plaintiff must analyze and
offer proof regarding the cross-elasticity of
demand for the products at issue. Todd v. Exxon
Corp., 275 F.3d 191, 200 (2d Cir. 2001). Plaintiffs
here have failed to provide a coherent definition of
the relevant market, referring only in general terms
to nextgen anti-depressants. They have failed to
proffer any evidence that other anti-depressants are
not economic and therapeutic substitutes for
Happynol and Euphorizem. Indeed, plaintiffs
experts have not even attempted to account for
Happynols recent loss of market share or for
studies indicating that a majority of consumers are
not willing to pay significantly higher prices for
somewhat more potent anti-depressants.
Defendants lack market power, and thus could not
possibly have restrained trade.
The Argument
The argument is the heart of your brief or motion. It is
obviously critical and it is likely to be the portion of your
document on which you will spend the most time drafting and
redrafting. While constructing an excellent argument section of a
brief may appear daunting, there are several fundamental
principles to follow.
Use argumentative point headings. The point headings in
your argument present an opportunity to persuade and focus the
court. They should always be argumentative.
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Headings should always be argumentative rather
than topical or even assertive. For instance, say
This suit is barred by laches because brought
twenty-five years after the issuance of the original
certificate rather than This suit is barred by
laches. The first gives the argument in a nutshell,
the second does not though certainly the second
assertive heading is infinitely more effective than
the merely topical The question of laches.
Weiner at 54. This rule applies even to subheadings describing the
governing legal rule. It is remarkable to me when I see an
otherwise excellent brief with a subheading that says The law
regarding laches or The standard for summary judgment. It is
much more effective to say Laches bars a suit when the plaintiff
has unjustifiably delayed in asserting a claim or Summary
judgment is appropriate when no reasonable jury could find that
the defendants conspired to fix prices.
In our hypothetical, it would be much better to say:
II. The District Court Correctly Concluded That
Pharma And Dr. Evil Possess No Market Power
Because There Are Many Economic Substitutes For
Happynol and Euphorizem That Relieve Depression
than to say II. Defendants Have No Market Power. Moreover,
as these examples show, it is important to have point headings that,
while concise, actually state your argument in a persuasive manner.
Make your best argument first in most circumstances. If
you have carefully selected your issues, you will likely have three
or fewer issues to present to the court. In the event that you have
more than one issue, it usually is most effective to present your
strongest argument first. You want to lead with the argument that
is most likely to grab the attention of and persuade the court.
Certainly, if you feel like you have a slam dunk winner, lead with
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Use the IRAC structure for each issue. We are not
talking about the war in the Middle East here. It is generally very
effective to use the Issue-Rule-Analysis-Conclusion structure for
each issue that you address in your argument. Under this
convention, include at least one sentence that states and defines the
issue you are addressing, a paragraph or more setting forth the
governing legal rule, a paragraph or more applying the legal rule to
the particular issue, and at least a sentence concluding with the
outcome that you seek with respect to that issue. It will often make
sense to divide a main section of the argument into a subpoint that
sets forth and describes the legal rule and a subpoint that applies
that rule to the issue involved.
The reason that this structure is usually the most effective
to employ is that it is the most logical way to construct a legal
argument. Identifying the issue at the outset orients the reader and
sets the stage for your analysis. Defining and explaining the legal
rule gives the court the criteria for decision and in many ways
limits the possible analytical outcomes with respect to a given
issue. Applying the rule to the issue provides the logical impetus
for the court to rule in your favor. And explaining the outcome
that you contend the law compels makes plain the result that you
urge the court to order. Many legal writers discuss the key facts
regarding an issue and then set forth the legal rule. While in very
unusual circumstances such an approach can be effective, it usually
- 32 -
is not. It is much more analytically compelling to establish the rule
of decision first and then to apply that rule to the case and its key
facts than to list a number of facts and expect the court to draw the
proper conclusions from the legal rule that you subsequently set
forth. And it is unnecessarily repetitive to describe the salient facts,
set forth the legal rule and then apply that legal rule to the facts
that you will have to redescribe, at least in part.
When establishing the legal rule, it is also helpful to start
with general statements of the legal rule from cases and then
demonstrate how that stated rule has been applied to the facts of
the most relevant cases. While statements of the law are important,
it is how those statements have been applied in analogous
circumstances that will most effectively persuade a court.
Particularly if the relevant legal rule is not well established,
it is also important to explain why the legal rule is logical and
compelling. Such an explanation may reside in helpful quotations
from cases, treatises, or even law review articles. Or, you may
have to craft such an explanation by using analogies, logic and
policy arguments. An example of such development of a legal rule
is the following:
As a corollary to the exception to the work-product
privilege and attorney-client privilege for materials
that shed light on a crime or fraud, there is also
an exception to those privileges for materials that
themselves constitute or evidence other type[s] of
misconduct fundamentally inconsistent with the
basic premises of the adversary system. In re
Sealed Case, 676 F.2d at 812 (citing, inter alia,
Moody v. IRS, 654 F.2d 795, 799-800 (D.C. Cir.
1981)); see also In re Sealed Case, 754 F.2d at 399.
J ust as the exception for an actual crime or fraud
serves the salutary purpose of requiring disclosure
of materials that shed light on the elements of
- 33 -
nefarious conspiracies or enterprises, so does the
closely related exception for other types of gross
misconduct. It is plainly inconsistent with the basic
premises of our adversary system to protect work
product or attorney-client communications that are
themselves violations of rules established by law or
principles of ethics, or that evidence such violations.
It simply makes no sense to protect such materials
merely because those materials involve an attorney.
Such materials indicate abuse of the attorney-
client relationship sufficient to deny the protection
of privilege.
Accordingly, the relevant misconduct is not
limited to criminal or fraudulent conduct, but may
also encompass other misconduct fundamentally
inconsistent with the basic premises of the
adversary system. Tri-State Hosp. Supply Corp. v.
United States, 238 F.R.D. 102, 105 (D.D.C. 2006)
(quoting In re Sealed Case, 676 F.2d at 812); Jinks-
Umstead v. England, 233 F.R.D. 49, 51 (D.D.C.
2006) (same). This exception to the work product
protection applies when a party seeking discovery
shows a violation sufficiently serious to defeat the
work-product privilege and a valid relationship
between the work product [at issue] and the prima
facie violation. Tri-State Hosp. Supply Corp. v.
United States, 226 F.R.D. 118, 133 (D.D.C. 2005)
(quoting In re Sealed Case, 676 F.2d at 814-15).
Thus, in Moody v. IRS, the D.C. Circuit held that
the work-product privilege would likely not apply
to a document detailing an allegedly improper ex
parte meeting between an attorney and a judge that
had previously taken place. The Court noted that
the purpose of the privilege is to protect the
- 34 -
adversary trial process itself, and explained that a
lawyers unprofessional behavior may vitiate the
work product privilege, as it would be perverse
to exploit the privilege for ends [such as covering
up improper ex parte communications] outside of
and antithetical to the adversary system. 654 F.2d
at 800. Accordingly, the court remanded to the
district court to determine whether the ex parte
communication described in the document was in
fact improper and whether the document should be
disclosed. See id. at 801.
Similarly, in Jinks-Umstead v. England, the court
recognized that the crime-fraud exception to the
work product doctrine would apply where there
exists a prima facie case of government misconduct.
233 F.R.D. at 51-52. The plaintiff there alleged that
government attorneys had conspired with the Navy
to cover up instances of intentional discrimination.
See id. at 51-52. The court upheld the
governments claims of work product and attorney-
client privilege only after examining the disputed
documents in camera and determining that [e]ven
if plaintiff had established a prima facie case of a
cover-up, which I found she did not, the documents
would have negated such a finding. Id. at 52.
Make your best affirmative case before responding to your
opponents actual or anticipated argument. While employing the
IRAC methodology, it is important to state your affirmative case
first.
Always write your brief in such a way as to set out
and make the most of your affirmative case. This
admonition is perhaps most to be borne in mind
when you are appellee or respondent; dont content
- 35 -
yourself, in that situation, with a point-by-point
reply to appellant or petitioner. Accentuate the
affirmative features of your case dont let the other
side write your brief or even shape it.
Wiener at 98.
There are several ways to implement this precept. If your
opponent disagrees with your statement of the governing rule, it is
most effective to set forth and describe the legal rule you advocate
(including showing how that rule has been applied in the most
relevant cases), and then to respond to your opponents argument.
It is more persuasive to establish the legal rule as the point of
comparison before attempting to demonstrate the flaws in your
opponents proposed rule. Similarly, if your opponent disagrees
with your application of the governing rule, it is most effective to
fully set forth your application and then to critique your opponents
attempted application.
There are also likely to be many circumstances where your
opponent makes an argument that neither directly conflicts with
your statement of the governing rule nor your application, but
nonetheless counsels for a different outcome. In such
circumstances, it may be effective to subdivide your argument on
the issue with a subpoint as to the governing law, as subpoint as to
its application, and a third subpoint that directly responds to your
opponents arguments that are not in direct conflict with your
statement of the law or you application of it. You could use a
point heading such as: C. Plaintiffs Contrary Arguments About
Market Power Are Unsupported and Erroneous
Rely most heavily on cases that apply the rule you
advocate in circumstances analogous to those in your case. As
has been noted previously, the most persuasive cases are usually
those that set forth or adopt the legal rule that you advocate and
then applies that rule in analogous circumstances in the same way
- 36 -
Address controlling or significant contrary authority. In
most circumstances, you opponent will cite (or will be likely to cite)
one or more cases that are troublesome for you. If a case is
controlling and clearly undermines your argument, you have an
ethical obligation to address it. Often such a case can be
distinguished or can be shown to no longer be effective, or at least
can be plausibly argued to have been wrongly decided. If a case is
not controlling, but undermines your argument and has been or is
certain to be cited by your opponent, it likely will make sense to
address it, particularly if you have a good answer. If a case is not
controlling, only arguably undermines your argument, and has not
been or may not be cited by your opponent, it is usually best to
avoid it unless your opponent cites it (in which case you can
address it in reply, or at oral argument or in a letter to the court if
you have no right of reply and there will be no argument).
Avoid string cites, unnecessary citations, and long block
quotes. It is very important to use legal authority to its best effect.
If you are stating an obvious or well-settled proposition, cite only
to one or at most two cases; the court will realize that the
proposition is well supported and will only be irritated and/or
distracted by numerous citations. If you are citing several cases for
a single, less well-established point, you should include either a
sentence or more discussion of each case in the text, or at least a
parenthetical containing a helpful quote and/or showing why the
- 37 -
String cites of numerous cases for a proposition should
virtually never be used. The only exception to this rule is where
you want to show that several other jurisdictions agree with the
novel or less well-established point that you are making. Such a
string cite should either come at the end of a paragraph or placed in
a footnote. Long block quotes should never be used. While I
dont agree with some practitioners that block quotes should never
be used, they should only be employed when they are used
infrequently, are very helpful, and are limited to about 5-10 lines in
length. I have seen several awful briefs that contained block
quotes several pages in length. That is a recipe for argument
suicide.
An example of a poor argument section. Using our
hypothetical, one could conceive of an argument such as this:
Plaintiffs assertion that defendants possess market
power does not take into account the realities of
competition and interchangeable or substitute
products. United States v. E.I. du Pont de Nemours
& Co., 351 U.S. 377 (1956); accord Balaklaw v.
Lovell, 14 F.3d 793, 799 (2d Cir. 1994). J ust
because Happynol is more expensive, does not
necessarily mean that it so unique that has its own
distinct market or that it truly possesses a significant
market share. See Global, 960 F. Supp. at 705;
Shaw v. Rolex Watch, USA, Inc., 673 F. Supp. 674,
679 (S.D.N.Y. 1987). Plaintiffs do not account for
the public recognition of older drugs similar to
Happynol as well as evidence that most consumers
are unwilling to pay substantially more for a
somewhat more effective anti-depressant. See
Brown Shoe Co. v. United States, 370 U.S. 294, 325
- 38 -
(1962). J ust like other federal courts have granted
summary judgment to plaintiffs under similar
circumstances, so was it appropriate here. See, e.g.,
Bogan v. Hodgkins, 166 F.3d 509, 516 (2d Cir.
1999).
This example conflates the legal rule and the application of
that rule, does not discuss the application of the legal rule in
analogous circumstances, and only superficially applies the legal
rule.
An example of a much better argument section. The
following is greatly improved:
Plaintiffs have failed to show that defendants have
sufficient market power to restrain trade. The
alleged product market must bear a rational
relation to the methodology courts prescribe to
define a market for antitrust purposes analysis of
the interchangeability of use or the cross-elasticity
of demand. Todd v. Exxon Corp., 275 F.3d 191,
200 (2d Cir. 2001). Thus, plaintiffs must include all
reasonably interchangeable or substitutable products,
United States v. E.I. du Pont de Nemours & Co.,
351 U.S. 377 (1956), taking into account the
realities of competition. Grinnell Corp., 384 U.S.
at 572-73. Accordingly, a relevant market is
determined not only by the prices of its products but
also by their use and other qualities. See AD/SAT v.
Associated Press, 181 F.3d 216, 227 (2d Cir. 1999).
A relevant market definition must account for
industry or public recognition; the products
peculiar characteristics and uses; unique production
facilities; distinct customers; distinct prices;
sensitivity to price changes; and specialized vendors.
See Brown Shoe Co. v. United States, 370 U.S. 294,
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325 (1962). A product that is unique in some ways
does not necessarily fall into a market by itself. See
Global, 960 F. Supp. at 705. Rather, it is the use
or uses to which the commodity is put that control.
E. I. du Pont de Nemours & Co., 351 U.S. at 396.
Thus, an antitrust plaintiffs failure to account for
interchangeable substitutes requires dismissal of or
summary judgment against the plaintiffs claim.
For example, in Bogan v. Hodgkins, 166 F.3d 509,
516 (2d Cir. 1999), the court affirmed a grant of
summary judgment to defendant where plaintiffs
confined their definition of the relevant market to
experienced National Mutual Life insurance agents
without considering the cross-elasticity of demand
with regard to other sales agents in New York, and
failed to produce factual evidence distinguishing
potential substitutes in the insurance companies
market.
Plaintiffs here have plainly failed to properly define
the relevant product market. Their expert, Dr.
Know-It-All, never provided any specific evidence
as to why joynols, which are widely-accepted
therapeutic substitutes for Happynol, are not
reasonably interchangeable on the bases of price,
use and other therapeutic qualities. Although he
recognized that many therapeutic alternatives
overlap one another with respect to efficacy,
tolerance, range, as well as price, Expert Rep. at p.6,
he failed to make any mention of the potential
clinical interchangeability of therapeutic substitutes
for Happynol and Euphorizem. That is directly
contrary to the expert testimony below of
psychiatrists and managed care organizations,
which consider them to be essentially fungible.
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Instead, Dr. Know-It-All looked only at price
competition, even though significant price
differences do not always indicate distinct markets.
AD/SAT, 181 F.3d at 228. Dr. Know-It-All also
could not explain why many studies documented
the robust competition between Happynol and other
joynols and Happynols recent decline in market
share. Thus, Dr. Know-It-All failed to take into
account the realities of competition as he was
required to do. See Brown Shoe Co., 370 U.S. at
325-26 (emphasizing that it is unrealistic to
divide markets on price alone). In this case, as did
the plaintiffs in Bogan, plaintiffs have made the
critical mistake of proffering flawed market-
definition analysis that fails to account for
reasonably interchangeable substitutes for Happynol
and Euphorizem. See Bogan, 166 F.3d at 516.
Therefore, plaintiffs proposed market definition is
incorrect and insufficient as a matter of law, and
this Court should affirm the grant of summary
judgment for that reason.
Do not construct reply briefs that are overly defensive.
The subject of writing compelling reply briefs could justify a book
of its own. My limited advice is to write reply briefs that generally
comply with the principles for opening briefs. The structure I
recommend is to use your introduction/summary of argument to
summarize the key arguments that you made in your opening brief
and either briefly address the most important of your opponents
arguments (if you have the room and its justified) or simply state
that your opponents contrary arguments are unpersuasive.
In the substantive sections of the reply, briefly restate your
specific argument from the opening brief and then address your
opponents responses one by one. Follow the general structure of
your opening brief, not your opponents brief, and use responsive,
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but argumentative headings. For example: Defendants
definition of market power is wrong because it entirely relies on
far-fetched substitutes and ignores more important economic
considerations such as product features and price maintenance.
Be sure to address the primary authorities cited by your opponent
and explain why your authorities are more persuasive. You may
also be able to fold in affirmative points that you made in your
opening brief as responses to your opponents arguments. For
example: Defendants argument ignores the principal component
of market power: the ability to maintain prices higher than those
charged for potential substitutes. Brown Shoe, 370 U.S. at 324.
Finally, do not feel compelled to address every point raised
by your opponent, however minor. You must address all of the
significant arguments and authorities and correct any material
misstatements of fact or mischaracterizations of the record. But
you need not address points that are trivial, clearly inappropriate,
or facially implausible.
The Conclusion
Your conclusion should be succinct and should state clearly
the relief you seek. For example: For the foregoing reasons, this
Court should reverse the district courts grant of summary
judgment and remand for a trial on the merits.
CONCLUSION
Writing a winning legal argument just takes applying the
principles we have discussed, focus, hard work, and a bit of
experience. With significant effort, you can write excellent briefs
and motions that have a great chance to persuade any judge or
panel. Good luck and go get em!
(I would like to thank my ABA colleagues Victoria
Dorfman, Thomas Donlon, Todd Holleman, and Paul Watford, for
their significant contributions to this article. I would also like to
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thank my colleagues at J ones Day, most notably Donald Ayer,
Glen Nager, Robert Klonoff, and Gregory Castanias, for
influencing my approaches to these subjects.)