January 01, 2016

Briefs: Opening Lines

Charles N. Insler

Every brief starts from the same point: the opening line and the first few sentences that follow. From this point, as each sentence passes, briefs diverge. One brief propels the reader forward and the other plods along, indistinguishable from the others in the queue. That introduction, and even the first sentence, serves as the initial point of divergence.

At their best, the opening lines introduce the subject matter, set the tone of the argument, and cast the case in the most favorable light. A compelling introduction anchors a brief and fulfills its promise to compel the reader to read on. At their worst, the opening lines create clutter and muddy the issues, as the sentences drag on and stumble into one another. A meandering introduction pushes the reader away.

The best introduction requires an introduction of its own: a great opening line. And for great opening lines, a writer can look to literature, movies, and even the occasional judicial opinion. Writing a brief is no different than writing a story; each involves a cast of characters, a story arc, and the author’s slant on that story. As former Fifth Circuit Judge John Minor Wisdom said, “The close association of good reading with good legal writing has always been obvious.” John Minor Wisdom, “How I Write” Essays, 4 Scribes J. Legal Writing 83 (1993).

In Anna Karenina, Tolstoy famously wrote that “happy families are all alike; every unhappy family is unhappy in its own way.” In a single sentence, he captured the reader’s attention and foreshadowed the themes of family, fidelity, marriage, and society to be developed over the course of the novel. The same is true of Charles Dickens and his timeless “best of times. . . worst of times” opening to A Tale of Two Cities.

Like a good novel, non-fiction writing, even on technical and obscure topics, can be recast on the force of its writing and opening lines. Michael Lewis’s Moneyball took sabermetrics, the empirical analysis of baseball statistics, and transformed it into a captivating bestseller and feature film. His opening line, “The first thing they always did was run you,” is the first step in a briskly-paced book, and introduces the themes of statistics, expectations, and transformations. From the opening, Lewis captures the essence of the book, as running and walking—how often a run is scored or prevented, which players draw the most or fewest walks, and so on—form the foundation of the narrative.

Even the big-screen blockbuster may choose a figurative bang over a literal one. The James Bond films are well-known for their opening sequences, but it is the opening line in Star Wars, “A long time ago, in a galaxy far, far away . . . ”, that remains with moviegoers after all these years. The Star Wars opening is further evidence that borrowing from great works, both new and old (think: “Once upon a time”), is a well worn tool on the writer’s belt.

Legal writing should employ these same techniques. “Put the sex appeal in the first sentence,” entreats Judge Wisdom. See John Minor Wisdom, Wisdom’s Idiosyncrasies, 109 Yale L. J. 1273 (2000). In a case involving baseball’s reserve clause and its implications under the federal antitrust laws, Justice Harry Blackmun began the court’s opinion by describing baseball’s first game between the New York Nine and the Knickerbockers, rather than an exposition of the Sherman or Clayton Act. Flood v. Kuhn, 407 U.S. 258, 260–61 (1972) (“It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken’s Elysian Fields June 19, 1846, with Alexander Jay Cartwright as the instigator and the umpire.”). In a case involving the Arizona Citizens Clean Elections Act, Justice Elena Kagan did not open with a description of the Act, the goals of the First Amendment, or a summary of her argument. Instead, she urged the reader to “imagine two States, each plagued by a corrupt political system,” before beginning her analysis of the Arizona statute’s constitutionality. Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2829 (2011) (Kagan, J., dissenting).

I strive to follow these examples in my own writing. Here are some samples:

  • “The job of trustee is no sinecure” (moving for summary judgment in a breach of fiduciary duty case);
  • “The modern world is filled with forms, from credit card applications to gym memberships, and from car loans to tax returns” (moving to dismiss an unauthorized practice of law claim);
  • “The old adage in real estate— location, location, location— captures the common sense of what is important to home buyers in purchasing a home” (opposing class certification in a case involving square footage estimates).

I try to distill the essence of the case and the argument down to a single thematic sentence. In a brief, the introduction should be less guidebook, providing the reader with generalized overviews and weak suggestions, and more trained guide, shepherding the reader through the major points with informed conviction.

Every brief has its opening, but not every opening serves its brief. To borrow from Tolstoy, every uninspired opening is as forgettable as the next, but every compelling opening is compelling in its own way.

Charles N. Insler

The author is with HeplerBroom LLC, St. Louis.