You Made your Case

Consult the applicable rules of court.

Different courts have different rules – specifying the dates when briefs are due, the subject headings they must contain, the typefaces and type sizes in which they must be set, the maximum number of words or pages they may contain, the number of copies that must be submitted, and the manner in which they are to be filed and served. Before you even begin composing, be certain that you’ll comply with the rules of the court in which you’re filing. If any of them seem unclear, call the clerk of court.
Follow the rules sensibly. Occasionally lawyers interpret court rules rather perversely. Take, for example, a rule that states: “The party appealing shall be denominated the appellant, and the party against whom the appeal is taken shall be denominated the appellee.” Some lawyers believe this means that they must use the terms Appellant and Appellee throughout the belief, when in fact it simply means that the style of the case (the caption on page one) should say “Joseph Jones, Appellant v. Sally Jeffers, Appellee.” Call the parties Jones and Jeffers throughout if you can (see $46); that way, you won’t strip the prose of human interest.

Or let’s say that a court rule specifies the following parts of a brief, in this order: procedural history, statement of facts, argument, conclusion. You’re going to have to include those parts, but there’s an urgent need to do something more: state the issues before you launch into the procedural history (see $14). Check with the clerk of court to see whether the parts listed in the rule must be exclusive or whether (as you hope) you might preface those parts with “Questions Presented,” or perhaps an “Introduction” or “Preliminary Statement” in which you state the issues and sum up your core points.

Now it’s true that some court clerks are pretty tyrants who will reject briefs that in any respect go beyond what the rules require. But our experience is that they are the exception. Call ahead to ask whether you can include an “Introduction” and perhaps even a “Table of Contents” in your brief.

Inputs: Antonin Scalia and Bryan Garner

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