When writing your brief, craft the section and subsection headings in complete, informative sentences. It’s a good idea to do this early on, at the outlining stage. This practice allows the court to quickly scan your brief and get an overview of your arguments. It shows you’ve thought through your arguments in advance. Composing full sentence headings will make your writing tighter, and you more aware of its architecture.
Section headings and subheadings should state not just the topic or issue, but also the advocate’s position on it. A good heading is a full-sentence proposition advancing a major premise (law) or a minor premise (fact), or both, in say, 15-35 words.
To borrow from Bryan Garner and Antonin Scalia in Making Your Case: The Art of Persuading Judges, don’t just write, “I. Statute of Limitations.” Instead, write “I. The statute of limitations was tolled while the plaintiff suffered amnesia.”
Here’s a more complete example from Making Your Case:
1. The four-year statute of limitations bars this action because Mr. Smith waited six years to file this suit.
2. Two essential elements of fraud—intent to deceive and detrimental reliance— were not established.
A. The record contains no evidence of an intent to deceive.
B. The record contains no evidence of detrimental reliance.
Point 1, and points 2(A) and (B) could be broken down into subheadings. Garner says every point can be divided into (1) major premise, (2) minor premise, (3) conclusion, and (4) refutation of opposing arguments. But he also says don’t overdo it. Don’t subdivide your points so much that you create clutter, instead of clarity.
In their abstract form, good point headings typically go something like this:
I. [Full-sentence conclusion.] A. [Full-sentence rationale.] B. [Full-sentence rationale.] C. [Opponent’s position is wrong on this point, because ..]
The best legal writers never put their point headings in all-caps and especially never in all-initial caps. When you write in all caps, you sound like you’re shouting. And when you capitalize just the first letter of each word, you do a disservice to the reader’s eyes. Just write the headings as normal sentences, boldfaced and single-spaced in the body of the brief. (Avoid boldface in the table of contents.)
Note that point 2 in the first example is written in the passive voice. Though Garner doesn’t say so expressly, the reason for this likely has to do with another of his tips for writing good point headings, which is to avoid sounding like you’re picking on someone. In general, try to argue against your opponent’s position, rather than a specific person or entity. That way, you’ll have an easier time convincing the court that yours is the better-reasoned argument.
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.