COLUMN > Write to Counsel
BY BENJAMIN S. HALASZ
No part of a brief is more likely to be read than its opening line. And yet, many briefs start like this:
Or like this:
These kinds of openings have no verve, no action. And your readers are more likely to yawn and reach for coffee than to approach the next sentence with interest.
By contrast, consider these two opening lines, from two of the parties involved in the Bernie Madoff litigation:
- Operating a massive Ponzi scheme, Bernard L. Madoff stole billions of dollars from thousands of investors, including charities, pension funds, universities, and individuals.11 United States’ Mem. of Law in Supp. of Its Mot. to Dismiss 1, Molchatsky v. United States, 778 F. Supp. 2d 241 (S.D.N.Y. 2009) (No. 09 CIV 8697).
- The Securities and Exchange Commission (“SEC”) decided to investigate Bernard Madoff’s multi-billion dollar Ponzi scheme at least six times over two decades.22 Pls.’ Mem. of Law in Opp’n to Def.’s Mot. to Dismiss 1, Molchatsky, 778 F. Supp. 2d 241 (No. 09 CIV 8697).
These make me look forward to reading the brief; and beyond that, they hint at the story to come.
Your introduction presents two strategic opportunities. First, you can present your brief’s theme in a favorable light. You convey that theme through tone—this brief is going to be aggressive, boring, narrative, educational, or something else—and by telling the story in a way that is memorable and interesting.
Second, you can place your brief in the context of the larger case, one in which you’ve been working to convince the judge of your version of events. Your simple procedural motion can remind the judge what the case is really about; for instance, that this was the case about the Ponzi scheme where the government had plenty of chances to catch the crook and yet failed.
But accomplishing these goals is easier said than done, and it can be a struggle to write a compelling, interesting intro. To make it easier, aim to include five elements in your introduction: a hook, a theme, a reminder of the underlying facts of the case, the key legal arguments for this motion, and the exact relief requested. While this isn’t the only way to write an introduction, these elements will help ensure you meet those strategic goals; and they provide an outline for when you’re facing a time crunch or just struggling to make the text flow.
A hook is an opening line that catches your reader’s attention, making them want to read more of the brief. Hooks are common features in newspaper and magazine articles. Both of the Madoff examples above contain a hook: they each read like the start of a story. Consider the story in this first line as well, from a tort case:
On the evening of July 1, 2005, plaintiff Laura Reichhart was walking with her young daughter and a friend along the Charlotte Pier (the “Pier”) at the Rochester Harbor, when she fell after tripping in a hole in concrete pavement approximately 17 inches across, 36 inches wide and 3 inches deep, and indistinguishable from the surrounding rough and chipped pavement surface.33 Pl.’s Memo. of Law Opposing Def.’s Mot. to Dismiss 1, Reichhart v. United States, 695 F. Supp. 2d 8 (W.D.N.Y. 2009) (No. 608CV06042).
This hook is factual, as were the Madoff ones. But a hook can also be about the law or its policies, as illustrated by this opening line:
In the 28 years since the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), minority jurors continue to be removed from panels at a disproportionate rate due to the continued discriminatory use of peremptory challenges.44 Defense Mot. to Preclude Unconstitutional Use of Peremptory Challenges 1, State v. Monfort, No. 09-1-07187-6, 2014 WL 9944564 (King Cnty. Super. Ct. Aug. 13, 2014).
The hook should be short, interesting, and directly relevant to the motion. Creating a directly relevant hook can be difficult, but it’s worth the effort. Some brief writers reach for a book of quotations, or a tome of poetry, as many speechwriters do; I find those hooks unpersuasive because they don’t seem sufficiently tied to the case. They are distracting rather than informative.
Nor are hooks limited to practitioner briefs; judges too will sometimes use hooks in their opinions to capture their readers’ attention. U.S. Supreme Court Justice Neil Gorsuch included some memorable ones during his time on the Tenth Circuit, ones that give a sense of what the case is about beyond the purely legal issues. “Little but grief has come of the loan Michael Van De Weghe gave his girlfriend,” starts one opinion.55 Van De Weghe v. Chambers, 569 F. App’x 617, 618 (10th Cir. 2014). For others, see Stan Parker, “Gorsuch’s Opening Words Speak Volumes About His Style”, LAW360 (Feb. 1, 2017, 10:04 PM), https://www.law360.com/articles/887242/gorsuch-s-opening-words-speak-volumesabout-his-style. At the same time, as others have pointed out, some judicial hooks serve as a warning not to reach too far, as they too can come across as distracting, irrelevant, or inappropriate.6 6See, e.g., Marshall Rudolph, Note, “Judicial Humor: A Laughing Matter?”, 41 Hastings L.J. 175 (1989); Nina Varsava, “Professional Irresponsibility and Judicial Opinions,” 59 Houston L. Rev. (forthcoming 2021), https://ssrn.com/abstract=3825848; Richard Re, A Rule Against Fun, JOTWELL (July 22, 2021), https://courtslaw.jotwell.com/a-rule-against-fun/.
Your introduction should also present the theme of your brief. Your audience should be able to read it and understand quickly why your client is in the right and the opposing side is in the wrong. Each of the hooks discussed earlier present the theme of the brief: (1) this scam was huge and far-reaching; (2) the government had plenty of chances to catch Madoff and failed; (3) the dangerous hole in the pavement was invisible to someone walking.
These themes not only serve to capture the attention of the reader, they also tell the reader from the get-go what the brief will be about. And by doing so, they help create a sense of unity in the brief, especially when the writer then develops that theme further in the facts section and hearkens back to it throughout the argument.
A reminder of the underlying facts
While the subject matter of a motion may be narrow, it exists within the context of a larger case, one in which the parties have already been trying to make the judge sympathetic to their client. Judges have hundreds of cases they are working on at any one time, and they may not immediately remember which one you’re presenting from just the party names. So it’s worth taking a sentence or two to remind the judge of that larger context, if it’s not already apparent.
The key legal arguments
Your introduction should also tell your readers the main legal grounds on which the judge should grant (or deny) the motion. This part is often very simple: the author provides the key legal rule or standard from the most important issue and the main argument or fact that shows why your client should win. For instance, in the brief about the hidden pothole, the author wrote:
Approximately one year after we commenced this personal injury action, defendant moved to dismiss based on the discretionary function exception to the Federal Tort Claims Act, arguing that (1) the challenged acts or omissions are discretionary, and (2) the judgment or choice exercised is grounded in social, economic or political policy. Needing to establish both of these elements, defendant has failed to prove either: defendant’s own policies prescribe specific acts to be taken with respect to pedestrian safety at the Pier and in any event, defendant’s negligent disregard of dangerous conditions are not “policy” decisions protected by the discretionary function exception.77 Pl.’s Memo. of Law Opposing Def.’s Mot. to Dismiss, supra note 3, at 1.
Some writers may hesitate to include a summary in the introduction, either out of fear of repetition or out of a sense that they don’t want to give away the exciting argument to come. But that summary functions just like a detailed agenda before a meeting: it tells you what topics will be discussed. Now that you know what to expect, you’re better prepared and your mind is ready to focus. That’s very helpful when you’re sitting through a two-hour meeting— or reading through a 25-page brief.
Exact relief requested
When judges visit my writing classes, they often emphasize the importance of including the exact relief requested in the introduction. One judge said it was a “pet peeve” when parties fail to do so, for often what seems obvious to the author is not apparent to the judge.
SO DOES IT WORK?
Consider judicial opinions
I suggest two metrics to decide whether to include these elements: whether it makes writing easier and whether it makes the brief more persuasive.
First, many authors find it easier and faster to write when they have a checklist of items to include. Second, while persuasion is subjective and difficult to measure, I appreciate these elements in others’ writing. When they appear in a judicial opinion, I know the holding right away, I know what to look for in the order to come, and I know when I’m in for a surprisingly good read. And those are worthy goals for briefs as well.
1. United States’ Mem. of Law in Supp. of Its Mot. to Dismiss 1, Molchatsky v. United States, 778 F. Supp. 2d 241 (S.D.N.Y. 2009) (No. 09 CIV 8697).
2. Pls.’ Mem. of Law in Opp’n to Def.’s Mot. to Dismiss 1, Molchatsky, 778 F. Supp. 2d 241 (No. 09 CIV 8697).
3. Pl.’s Memo. of Law Opposing Def.’s Mot. to Dismiss 1, Reichhart v. United States, 695 F. Supp. 2d 8 (W.D.N.Y. 2009) (No. 608CV06042).
4. Defense Mot. to Preclude Unconstitutional Use of Peremptory Challenges 1, State v. Monfort, No. 09-1-07187-6, 2014 WL 9944564 (King Cnty. Super. Ct. Aug. 13, 2014).
5. Van De Weghe v. Chambers, 569 F. App’x 617, 618 (10th Cir. 2014). For others, see Stan Parker, “Gorsuch’s Opening Words Speak Volumes About His Style”, LAW360 (Feb. 1, 2017, 10:04 PM), https://www.law360.com/articles/887242/gorsuch-s-opening-words-speak-volumesabout-his-style.
6. See, e.g., Marshall Rudolph, Note, “Judicial Humor: A Laughing Matter?”, 41 Hastings L.J. 175 (1989); Nina Varsava, “Professional Irresponsibility and Judicial Opinions,” 59 Houston L. Rev. (forthcoming 2021), https://ssrn.com/abstract=3825848; Richard Re, A Rule Against Fun, JOTWELL (July 22, 2021), https://courtslaw.jotwell.com/a-rule-against-fun/.
7. Pl.’s Memo. of Law Opposing Def.’s Mot. to Dismiss, supra note 3, at 1.