In the final section of your brief, don’t forget to remind the court why your side should win.
All too often, having run out of time, space, and energy, you finally get to the end of the brief you’ve been toiling over and dash off a concluding line like, “for the foregoing reasons, the Court should [grant or deny the motion].”
With such a trite and mindless final sentence, you’ve blown the opportunity to resound your theme and leave a lasting impression. And you haven’t reinforced the reasons why you should win.
To end a piece of written advocacy so weakly is like “send[ing] off a trusted ally on an important mission with a perfunctory, ‘See ya,’” legal writing expert Bryan Garner says in The Winning Brief (3d ed.). We must work to avoid the “formulaic closer.”
Also, foregoing is one of those archaic words, one of those useless lawyerisms that gum up the flow of prose and should be banished from legal writing. In fact, foregoing turned up among the 34 words and phrases that judges say they dislike the most in a survey of more than one thousand members of the bench conducted by Ross Guberman, another esteemed legal writing expert.
So, forego “for the foregoing reasons.” Instead, conclude powerfully by summarizing the three or four strongest reasons why you should get your way. As discussed in a previous column, that is also a very good way to start your brief. Ending in the same fashion will give your overture to the court an appealing symmetry. Remember that the whole purpose of the rest of the brief is to justify your conclusion. So, as Garner tells us, “Make it count.” Leave no question that the only legitimate outcome is the one you desire.
Here is a perfectly fine example, with some slight changes, from the pages of The Winning Brief:
Smith provides no evidence to support any of his allegations about his Equifax credit report:
- that it was inaccurate;
- that it contained obsolete information;
- that any inaccuracies caused him harm; and
- that Equifax failed to maintain reasonable procedures.
In the absence of any evidence, Equifax is entitled to summary judgment on all of Smith’s claims.
The example below (to which I’ve added a possible concluding sentence) is an excerpt of a brief by renowned employment lawyer Nancy Abell, as featured in Guberman’s Point Made (2d ed.). Notice how it emphasizes the plaintiff’s failure to establish the required elements of her claim:
The trial judge correctly observed: “There’s absolutely no evidence at all that any discrimination was taking place.” Doiwchi herself conceded that even she does not believe she was let go because she has a learning disability. The record is devoid of substantial evidence of intentional discrimination. So, too, is it devoid of the requisite proof that those accused of failing to accommodate knew that Doiwchi had a covered disability and a disability-caused-work-limitation that required accommodation. Doiwchi never told them.
[Because Doiwchi did not show that Princess Cruise Lines discriminated against her, the court should affirm the granting of summary judgment to the cruise ship company on her claim.]
If you can, in your conclusion, or in the last sentences of your argument section, follow Garner’s advice in Making Your Case: The Art of Persuading Judges and show that a ruling in your favor would have a positive impact beyond the confines of your case. You might, as Garner suggests, explain that any other outcome would “leave the bar and the lower courts in uncertainty and confusion, or facilitate fraud, or flood the courts with frivolous litigation.” Perhaps you can point out that a win for your opponent would result in bad public policy, as the final sentences of the argument section from another brief featured in Point Made imply:
MedImmune is trying … to lock in its low royalty rate while at the same time trying to invalidate the patent. The Federal Circuit in Gen-Probe disapproved of the sort of strategic positioning MedImmune is attempting here. The Federal Circuit correctly noted that allowing such no-risk patent challenges would have the effect of discouraging the voluntary licensing of patents in the future.
Many jurists say that the way you finish your brief is second in importance only to the way you start it. So, don’t give this critical part short shrift. At the very least, recount the reasons why you should win.
About the author:
Attorney Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She can be reached at email@example.com. Follow her on Twitter at @SavannahBinSF