Under the Federal Rules of Appellate Procedure, opening briefs must include a summary of argument that appears after the statement of the issues and the statement of the case, and before the arguments section. (Fed. Rules App. Proc., rule 28(a)(5-7), 28 U.S.C.)

This section “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief,” and it “must not merely repeat the argument headings.” (Rule 28(a)(7).)

Unlike the introduction, the summary of argument is not just a preview of the topics to come. It is a truncated version of the substance of your arguments, or, as Bryan Garner and Antonin Scalia put it in Making Your Case, a statement of “the main lines of thought without embellishment and quotations” that includes only key (if any) citations. This section provides an opportunity “to make the relationship between your arguments clear,” as The Appellate Lawyer Representatives’ Guide to Practice in the United States Court of Appeals for The Ninth Circuit (2016 ed.) notes. This is where, for example, you would point out that “the Court need not reach argument B, if it finds for you on argument A.”

The reason for inclusion of an argument summary is simple: some judges rely on this section to get a quick handle on the case. They may read this section and no other—especially when their workload is heavy.

Garner and Scalia recommend including a summary of argument even if the court does not require one: “Omit it only if it is not required, if it is counted against your brief limit, and if it takes up space that you absolutely require for full exposition of your points.” (Do make sure there is no local rule calling for its exclusion).

The best advice is to write the summary of argument last—after completing the full arguments section and the conclusion. Summarizing makes you sharpen your focus and distill the issues. You may find yourself modifying or paring down the arguments section as a result. Keep the summary short. As a general rule, the summary of argument should comprise no more than 10 percent of the total length of the brief (not counting the Table of Contents and Table of Authorities).

In appellate briefs, if you have written a sound statement of the questions to be resolved in the case and plan to write a summary of argument section, an introduction is probably unnecessary, or you might consider combining the two into a section headed, “Introduction and Summary of Argument.” In motion practice, an introduction is typically used to set forth the issues presented and a summary of the arguments. But there, too, inclusion of a combined “Introduction and Summary of Argument” section might make the most sense.

Most importantly, don’t use this section to replicate what you have written in other parts of the brief. As Garner and Scalia warn, “Repetition bores, and boredom invites skimming” … and ruling against your side.

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 savannah.blackwell@gmail.com. Follow her on Twitter at @SavannahBinSF.