When we’d make presentations together, my late coauthor Justice Antonin Scalia would sometimes fantasize about being able to issue grades for briefs as well as declaring winners and losers. It was frustrating, he said, how often a poorly written brief would win—yet the judges couldn’t tell the celebrating lawyers how mediocre or downright bad their written advocacy had been. If there were such a system, we might call it “fantasy judging.” So that’s the object of this article: issuing grades for one seemingly small but in fact paramount aspect of brief-writing—the point headings.
Headings provide the outline of the argument. Hence much of what appears in a brief flows from those point headings: the organization of arguments, the development of cogent lines of reasoning, the refutation of counterpoints, the concreteness of the writing, and the ease with which the arguments can be understood at a glance. If you have weak headings, or if you draft the brief with the intention of providing the headings later, the writing will almost certainly be undisciplined, scattered, and verbose.
One might argue that point headings don’t matter so much—that many judges rarely look at them. If that’s so, it’s only because the typical lackluster and off-putting point headings have conditioned them not to. Certainly this conditioning has taken place at the level of intermediate federal courts, where lawyers’ point headings are mostly pretty inept. Nevertheless, Judge Stephen Williams of the D.C. Circuit has told me that he considers point headings the most telling part of a brief; simply from the table of contents, he said, one can extrapolate how good or bad the rest of the brief is going to be.
When we speak of normative grading, it’s best to have explicit, objective standards, so in the sidebar I’ve set forth some. There are reasons underlying them, and I think good ones. One of them involves how to do initial capitals: every stylebook dealing with the subject insists that with initial caps, not every word is capitalized—namely, not articles, conjunctions, or prepositions of four or fewer letters (unless it’s the first or last word). See, e.g., The Chicago Manual of Style ¶ 8.159, at 526–27 (17th ed. 2017) (specifying, unconventionally, that in initial-caps style, all prepositions are lowercase, even those of more than four characters); Garner, The Redbook: A Manual on Legal Style § 2.10, at 67–68 (3d ed. 2013); The New York Times Manual of Style and Usage 57–58 (rev. ed. 1999) (s.v. “capitalization”). Hence Gone with the Wind, not Gone With The Wind; The Works of William Shakespeare, not The Works Of William Shakespeare; Supreme Court of the United States, not Supreme Court Of The United States. That’s pretty elementary, even though it requires a basic understanding of the parts of speech. Perhaps a writer’s knowing when and how to capitalize is analogous to a basketball player’s knowing the basic dribble, a sprinter’s knowing foot placement in the starting blocks, or a golfer’s knowing how to tee up the ball. Yet, many lawyers have never learned how to do initial capitals the standard way—or else, weirdly, they think different rules apply to legal writing.
Many lawyers err doubly: not only do they use initial caps when they shouldn’t (for full sentences), but they also do them incorrectly. Initial caps are great for short titles and topical headings. They’re really bad for complete propositions of any length. So my point is that they shouldn’t ever appear in point headings, as opposed to topical headings such as “Statement of Facts” and “Summary of Argument.” But if you’re going to use them, use them right.
It might be possible to argue that these standards are arbitrary. This argument might proceed along the lines that if famous, high-quality lawyers habitually do something, it must be a good practice. But the mere fact that good lawyers do something doesn’t make it ipso facto good. That would be a gross oversimplification.
If what the good lawyers do is demonstrably more effective than the alternatives, and it’s in line with the learning and teachings of rhetoricians in allied fields, I say bravo. But if what they do is demonstrably obscurantist and ineffective, and it defies the learning and teachings of rhetoricians in allied fields, then I say reform is surely desirable.
I also believe that if you asked judges what they like in point headings, they wouldn’t generally be able to articulate their preferences. “I want clarity,” they’re likely to say. Of course they do. But most judges probably haven’t studied the specific elements that are conducive to clarity in point headings.
Clarity and Credibility
In any event, my intention here is to issue grades on elements that relate (positively or negatively) to clarity and credibility—elements that invite readers either to read with rapt attention or to look away with resignation. We’re looking at the point-heading component of U.S. Supreme Court briefs for the 2016–2017 term.
It’s not as if the elements and standards for good point headings amount to some kind of cabala. I’ve written copiously about them in The Winning Brief (3d ed. 2014), at pp. 403–22 and 660–73. Justice Scalia and I wrote about them in Making Your Case: The Art of Persuading Judges (2008), at pp. 408–09. Both books contain examples of A-grade point headings. Those who’d like empirical evidence of just how bad point headings can be in the lower courts are encouraged to go to any state supreme court’s website or to look at my recent article “The Future of Appellate Advocacy” in Duquesne Law Review.
One major facet of my brief-writing seminars is that drafting concrete point headings and issue statements should precede drafting the rest of the brief. Those elements amount to signposts for the argument, establishing for judicial readers its origin, its destination, and the route in between. Point headings should never be afterthoughts. Instead, the paragraphs within sections should be written in support of the propositions contained in the headings. That way, the marshaling of arguments becomes much more orderly.
In the following pages, I’ve given archetypes for the various grade levels (A, B, C, D), with minus-grade deviations for the reasons stated. My hope is that the explicitness of the grades will be genuinely helpful to the bar. But then I know from experience that the bar is slow to reform, given the inherent conservatism of practice, usually born of a fear of departing from one’s own past conventions.
For those who might think that we’re focusing here on a picayunish aspect of brief-writing, I’d simply point out that teachers of any performance technique find it useful to isolate various aspects of the performance to assess how it might be improved. This attention to detail enhances the overall performance. Hence piano teachers are exceedingly alert to posture, hand position, rhythm, finger dexterity, tone production, control of dynamics, appropriate use of pedals, etc. Even expert pianists must sometimes go back to the basics to be certain they’re not neglecting them. It’s embarrassingly easy for bad habits to creep in.
So as a teacher of writing and advocacy, I’m posting here some of the final grades for the 2016–2017 term. The pages reproduced here are PDFs from the briefs as filed. I’ve noted whether the brief won or lost, but for purposes of this exercise, that consideration is incidental. I’ve limited the grading to merits briefs. I’ve excluded reply briefs even though the same standards could be applied to them. The first grade is for form, the second for content.
You’ll note, I hope, that every C and D brief appearing here was filed on behalf of the party who ultimately won the appeal. No disparagement is intended toward any of the lawyers. Look at the headings objectively, though, and you’ll see why some hidebound practices should be changed.
By the way, almost all briefs from the U.S. Solicitor General’s Office earn grades of A to B+ at the worst. Interestingly, though, many former solicitors general, having gone into private practice, earn C or C−. Institutional excellence and institutional mediocrity doubtless come into play here.
In the pages that follow, you’re seeing two archetypes for each grade, A through D. Space constraints prohibit showing all the grades for the term, so here I’m presenting just eight. If the Solicitor General’s Office’s briefs are taken out of the mix, the average grade for the term, on absolute terms without a curve, was C−.