October 09, 2020 Feature

First Impressions

Writing your brief’s introduction.

Robert E. Shapiro

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Everyone’s heard of an elevator speech. Maybe even given one. You’ve got only 15 or 20 seconds, the time it takes for an elevator to descend between floors, to introduce yourself or start a sales pitch or prove your expertise to someone unfamiliar with you and what you have to offer. When your time’s up, you must have at least drawn the interest of your interlocutor, gotten him thinking your way, eager to talk more.

It only rarely happens in an elevator, of course. Maybe you are in line at your building’s Starbucks and, suddenly, there next to you is that attractive “other” who has intrigued you from a distance for months. Or, at a cocktail party, a chance introduction to a big potential client gives you the opportunity of a career, not to say a lifetime, lasting only until another equally on-the-make lawyer crowds into your space. Or, most critically, at a seemingly routine status conference, the judge suddenly expresses doubt about your client’s case and impatiently demands to know from you, in just a few words, how you could possibly be litigating with a straight face.

Time’s a-wasting. Attention on you is likely to be fleeting. Opportunity knocks, but disaster also looms. In all of these circumstances you’ve got everything to gain, and quite a bit to lose too: a few moments will decide your fate, and you must not just set the right tone and manner but also make your substantive case. What do you say? It has to be something, just enough and not overly much, that is worthwhile and effective. What is that exactly?

You must not just set the right tone and manner but also make your substantive case.

You must not just set the right tone and manner but also make your substantive case.

Illustration by Doug Thompson

It is easy to say what it’s not. If you want to sell yourself, or your expertise, you’ll make no good or lasting impression with a chronological recitation of the pedestrian facts of your life. Nor, at the other extreme, will it help to tout your credentials as some kind of stud litigator. However important these facts are to you, and even if true, neither approach is going to keep anyone’s interest. “Hi, I’m Mike. I grew up in Kansas, went to school in New York, and now work as a top lawyer in my firm in Chicago where I’ve been involved in 15 tough securities cases.” You’re doomed. “Hi, Mike,” will go the response, “nice to meet you. See you later!!” Nor, in those all-important few seconds before your importunate judge, do you want to start with “this is a contract case, the amount to be paid was $15 million, but my client received a letter, and . . .” blah, blah, blah. The judge knows all this already. You’re getting nowhere. “Case dismissed,” you hear, and then the coup de grace: “with prejudice.”

Stating Your Case

No, an elevator speech is your first, and maybe last, opportunity to state your case, whatever it is, in a concise and engaging way and get the ball rolling. In style, it has to show confidence without bumptiousness, simplicity and clarity without simple-mindedness, knowledge without pedantry. Substantively, it must not only grab attention but, ideally, be interesting, if not memorable, tantalizing, and persuasive. In court, it needs to convey not just how you can survive, but how you should win. It must summarize without draining all the vitality from your argument while still holding out the promise of further compelling proofs to come. It is your case crystallized and polished, putting you in the best circumstance to be successful at first hearing.

Got it? Easier said than done, for sure. But in case you think that elevator speeches are such rare and chance occurrences that you need not worry about them at all, think again. Litigators are called upon to give them almost daily, not at Starbucks or at cocktail parties or even in court. In writing. In their briefs. Every brief or memorandum you file in support of a motion or before trial contains an elevator speech. It’s called the introduction, and it’s critical to your brief and your case.

Strange, then, that although lawyers have more than 15 or 20 seconds, perhaps hours or even days, to think what to say, to introduce themselves and their cases in writing, they often do nothing different from one of those stultifying presentations that spells doom orally. Generally speaking, introductions are done badly. Lawyers who know well enough in personal interaction or in court not to lose time or to bore or to merely summarize seem to lose themselves completely in writing this key section of their briefs. Instead of providing a compelling opening, introductions are too often an afterthought, a dry recitation of what’s coming next, where the real action can be found only in the body of the brief itself.

Consider how introductions are most often drafted. There is a common, not to say universal, practice of drafting an introduction only after the brief has been finished. You’ve completed all the individual parts of the brief, so the reasoning goes, making the arguments in their best order. With that done, you can go back to the introduction to summarize there what has been written and will be encountered later by the judge when she turns to the body of the brief itself, assuming she ever does. Some young lawyers will even submit drafts to a senior lawyer with the introduction unwritten, knowing he will add his own, assuming this to be a simple task based on what’s been written. This practice should be banned. It’s not just that a brief drafted without the introduction isn’t finished. The truth is that a brief written without an introduction hasn’t been started.

The introduction to a brief is far and away its most important part. Even if the judge is going to read the brief through to the end, the text as a whole could be 15 pages or more. The average attention span of a human is said to be 8 seconds, not even as long as that of a goldfish (9 seconds, though hopefully unlike your judge, the goldfish remembers nothing). Without a memorable start, you are going to lose your reader after a page or two or three. Start weak and end up with no further attention at all. Start strong and the reader will want to know more.

The importance of an introduction lies in more than that it is read first. The introduction characterizes, describes, the case and your motion. It sets the stage, as it were. And setting the stage is, if not everything, then almost so.

Consider this: Most lawyers understand the need for drafting an outline. Outlines are essential for organizing the arguments you are going to make, in how much detail, and in what order. But arguments to prove what? What is it you are trying to show? Can you condense the overall point into a few short paragraphs? If not, do you really understand clearly what you are trying to prove? Outlines are all fine and good to figure out the character and order of your persuasive proof. But arguments are only as good as the essence of your case and the overall point and theme of your brief generally. If they are not addressing that central concern and sounding the right theme, they are probably useless, no matter how well considered and stated.

Steps to a Good Introduction

To write a compelling brief, you need a compelling opening. Here are a handful of steps toward writing a good introduction.

What’s the case about? Can you answer this question? More than anything, a brief writer needs to think about the essence of her case. What is the underlying problem at hand? Why is there even a controversy at all? Every case is different. You have to get to the nub of the problem. Step back and consider these things carefully. What has led to this controversy? Why does your client feel aggrieved or believe it was justified? And how can your client’s view be made to appear the right one?

Don’t stop with your client’s case. There is an unfortunate tendency in contemporary times to view the other side’s case as the product of stupidity, irrationality, or maliciousness. It isn’t. In most cases, your adversary, or at least his client, is just as convinced as yours is about his understanding of things and the rightness of his position. How could this be? Contrary to popular belief, litigation is not really a dispute about the facts. Well, sometimes it is. Who threw the first punch? Was the light red or green? Was a false statement made? But more often than not, the real dispute is about what the facts mean. Was any lack of truth in the statement material, was it something that a reasonable person would rely on, did it cause the harm? Were there other circumstances that bore on the matter that made the action justified or not?

In most cases, your adversary sees the meaning of the facts differently. Why? Until you can answer this question, you cannot be effective. Your first goal is to assess the relative strength of the two positions, through genuine consideration of the other side’s case or at least its position on the motion. Then, you have to consider how you might persuade the court to see the facts your way rather than from your opponent’s point of view.

Writing an introduction involves distilling the dispute to its core issues in this way, for your own benefit in the clarity of your thinking and for the court’s understanding of the case in a manner favorable to you. You may not invent or alter the facts. This is what is called lying, and it’s prohibited. But you can, indeed must, shape the established facts to make your best available case. Thinking about your case, and then drafting the introduction with these elements in mind, is your best ticket to success.

Where are we? Your next step is to consider the setting. Whatever your purpose in the brief, how does it relate to the overall problem? If you are, as in most cases, filing the brief in support of a motion, you must know how that motion relates to the case as a whole, how the matter immediately at issue advances your position in the case generally. Nothing can be understood without a reference back to the basic problem. But, unless you are writing a trial brief, your brief seeks to persuade with respect to something less than everything. The introduction, ideally, states, or at least alludes to, the overall issue and introduces the essential purpose of the present filing. And does so in a memorable and persuasive way. If yours is the opening brief, you have a not-to-be-lost chance to set the stage for consideration of your immediate issues within the context of your own understanding of the overall controversy.

The same approach must inform a responsive brief. Your adversary has set the stage as he prefers. You must know yours, understand his, and counter it. The goal is to reconfigure or reshape the immediate controversy in a way favorable to your own understanding and destructive of his. And then to present your opposition to the motion at hand in light of your own point of view. If you are successful in this recharacterization, your adversary’s motion will seem almost to refute itself. Your arguments to follow will merely hammer the nails into the coffin.

Name that tune. If the foregoing seems too abstract, or even if it doesn’t, try to develop a theme. As in the case of a song, nothing conveys meaning with respect to both the underlying issues and the immediate dispute as does a refrain, a recurring theme that you want to lodge in the judge’s brain. You want her to be thinking, “Oh, this is the case about . . . ,” picking up thereby your understanding and approach. It must therefore be memorable. Sometimes an unusual turn of phrase or word will do the trick. But avoid being too obvious or cutesy. The truly clever never reveals itself.

Developing a theme is difficult. It needs to be just right, really encapsulating your case. It needs to be short enough to be remembered but rich in substance too. In some ways, it is a test of your own thinking and analysis. Often people say they know what they mean or want to say but cannot put it in words. More frequently, the converse is true. They cannot put it into words because they haven’t finished their thinking and literally don’t know what they want to say. If you have thought through your case and know why you are pursuing your motion (or opposing one), you should be able to condense it to a simple thematic element.

Make your case first. Even in a response, you should first be making your case. Don’t start by counterpunching. Begin from where your case is strongest. Particularly unsettling is a brief that begins with an attack on the other side or its position, even in response. The first thing you should be doing is convincing the court of your understanding of your case, through a compelling declaration of your position, not the weakness of the other side’s argument. If you’ve done your first job correctly, the other side’s position will already be teetering. Only then should you reach out with specific arguments to knock it down.

Summaries should summarize. After you have understood your case, set the landscape, presented your theme, and shown why you should be the winner, you may wish to summarize the coming arguments. Do so engagingly. Nothing is worse than a boring recitation of arguments to come. Unless it is too long a presentation of what is to come. Concision is critical. The goal is not to fulsomely present the arguments, but to make them simple, straightforward, and persuasive. Generalize. Broad statements are best.

Rethink, re-envision, rewrite. Mark Twain always said that whenever he wrote something he thought was really good, he would throw it away. A big mistake is to go with your first draft or even idea, no matter how gripping or compelling you think it is. This is true for all the foregoing steps. You cannot settle on the very first approach you try. Finish the introduction. Revise it. Does it work? Try it another way. And a third. This is your only chance to set the stage properly, create a memorable theme, and introduce the coming arguments persuasively. Does this introduction do it? Even if it does, is there some way to do it better?

Don’t carp; characterize. Introductions that overstate, are florid, or accuse are a mistake. Substantive overstatement is disastrous. The very memorableness of your introduction will cause any untruth to be more harmful to your credibility. An opening brief’s exaggerations are a great target for a response. Adjectival or adverbial excess helps the other side. If your adversary’s brief is loaded with over-the-top rhetoric, a good trick is to circle all the relevant hyperbole and to use it against him as part of your counterpunching: “Nor is it ‘absurd’ to say, as defendant asserts, that. . . .” Then state your position—so harshly characterized by your adversary—in an obvious, non-absurd way. Such techniques are valuable throughout your brief, of course. But if there’s one such instance that is particularly compelling, make it part of your introduction.

Replies do more than reply. The rule about not starting with a counterpunch applies a fortiori to replies. The first paragraph of a reply brief should make little mention of the other side’s brief. Rather, it should endeavor to reassert the superiority of your original approach as stated in your opening. In a reply, the first goal of the introduction is to remind the court of the proper setting. “As we showed in our opening brief . . .” is a good start. What you showed in your opening is what the case is truly about and how your motion flows naturally from that point of view. Remind the court what you have said in your opening about what the case is about, what the landscape is, what thematically is at stake to ensure the judge is not distracted by your adversary’s contrary perspective.

Only once this portion of the introduction is complete should you begin to talk about the other side’s position. If you have developed the general description, setting, and theme properly, the other side’s brief can next be summarized in a way that shows its misalignment with your own, more persuasive and serviceable account. Again, avoid language of accusation or nastiness. You should summarize the other side’s case in terms that refute themselves.

All of this may seem more trouble than it’s worth. It’s not. Writing a powerful introduction that meets these terms will pay huge dividends subsequently. It will have allowed, even forced, you to think through your case, not to mention your adversary’s. It will have allowed you to see what’s persuasive, and not, about your client’s position. It will have created for you a useful theme for the litigation generally, or at least the motion at hand. It will have introduced the arguments to come in a compelling way. It will have set the right tone and seriously undermined the other side’s position. And if you’ve done all this with care and deliberation, you may just win.

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Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.