As the first page of every brief, the table of contents is where your arguments make their first impression. With its bird’s-eye view of those arguments, the table provides, according to many judges, a better sense of a brief’s strengths and weaknesses than the preliminary statement or introduction many briefs contain. As between a well-written table of contents and a well-written introduction, one could argue that the first is more important forensically.
Because the table of contents will be the first thing the judge reads, the goal should be to write it in a way that primes the judge to understand everything that follows. To that end, a table of contents should not only summarize crisply the brief’s arguments but also accomplish two other objectives. It should help the judge form a mental image of the decision tree the judge will use in deciding the case, and it should introduce the judge gently, without detail, to the factual context of the dispute. This article offers some techniques and tips for accomplishing both.
As the metaphor of a decision tree implies, the branching, outline structure of the table of contents is perfect for illustrating textually the logical flowchart judges and lawyers see with their mind’s eye when they think about a dispute on a high level. You should exploit this unique, non-linear feature of the table of contents to the fullest extent.
To underscore this point, consider this hypothetical table of contents from a brief in support of a motion seeking judgment as a matter of law (JMOL) or a new trial in an antitrust action:
I. JMOL Should Be Entered Because Plaintiff Lacks Antitrust Standing.
II. JMOL Should Be Entered Because Plaintiff Was Not a Direct Purchaser of the Goods Produced by Defendants.
III. JMOL Should Be Entered Because Plaintiff Did Not Suffer Injury by Reason of the Antitrust Laws.
IV. JMOL Should Be Entered Because, in Violation of Fed. R. Evid. 702, Plaintiff’s Expert Lacked Relevant Expertise to Offer the Opinions to Which He Testified.
V. JMOL Should Be Entered Because, in Violation of Fed. R. Evid. 702, Plaintiff’s Expert’s Opinions Were Not Based on the Exercise of a Reliable Methodology.
VI. A New Trial Should Be Held Because Plaintiff Elicited Highly Prejudicial Testimony About a Prior Antitrust Settlement.
VII. A New Trial Should Be Held Because the Closing Argument of Plaintiff’s Attorney Contained Highly Prejudicial Evidence.
VIII. JMOL Should Be Entered Because the Damage Award Was Not Supported by the Testimony of Plaintiff’s Damages Expert.
IX. The Court Should Order Remittitur of 75% of the Jury’s Damage Award Because It Was Four Times Higher Than the Damages Calculation Proffered by Plaintiff’s Expert.
Such a table gives the judge an overview of the nine arguments that will follow. But that is about it. The arguments’ logical architecture is obscured by the table’s simple structure as a list. Once the table is revised to appear in the conventional format, the various paths the judge can take to a decision start to appear:
I. JMOL Should Be Entered Because Plaintiff Lacks Antitrust Standing.
A. Plaintiff Was Not a Direct Purchaser of the Goods Produced by Defendants.
B. Plaintiff Did Not Suffer Injury by Reason of the Antitrust Laws.
II. JMOL Should Be Entered Because Plaintiff’s Expert’s Opinions Offended Fed. R. Evid. 702.
A. Plaintiff’s Expert Lacked Relevant Expertise to Offer the Opinions to Which He Testified.
B. Plaintiff’s Expert’s Opinions Were Not Based on the Exercise of a Reliable Methodology.
III. A New Trial Should Be Held.
A. Plaintiff Elicited Highly Prejudicial Testimony about a Prior Antitrust Settlement.
B. The Closing Argument of Plaintiff’s Attorney Referred to Highly Prejudicial Evidence Not Admitted During Trial.
IV. The Jury’s Damage Award Should Be Vacated.
A. JMOL Should Be Entered Because the Jury’s Damage Award Was Not Supported by the Testimony of Plaintiff’s Damages Expert.
B. The Court Should Order Remittitur of 75% of the Jury’s Damage Award Because the Award Was Four Times Higher Than the Damages Calculation Proffered by Plaintiff’s Expert.
A judge reviewing the revised table with its branching format will appreciate that what first appears dauntingly as a set of nine arguments is in fact more like four, each of which has two alternative arguments. The judge will also come to appreciate quickly that if he decides I or II in the movants’ favor, he need not reach III or IV; or that if he decides III.A in the movants’ favor, he will not have to address III.B. He will understand that he reaches IV only if he decides I through III against the movants. He will understand that I.A and I.B both assert defenses that fall under the rubric of antitrust standing. Having this mental map in place before reading the brief is helpful.
Here is another example of a table of contents that both illustrates the relevant decision tree and gives a good overview of the arguments the brief will make:
I. The Doctrine of Assignor Estoppel Should Continue to Be Recognized.
A. Congress Incorporated Assignor Estoppel into the Patent Act.
B. This Court Has Interpreted the Patent Act to Include Assignor Estoppel.
II. The Doctrine of Assignor Estoppel Should Not Be Narrowed.
A. Assignor Estoppel May Be Asserted Against Assignees of Not Only Patents But Also Patent Assignments.
B Assignor Estoppel May Be Invoked to Bar Challenges to Invalidity Under § 112.
Even if the judge does not know anything about the obscure patent law doctrine of assignor estoppel, he can nonetheless glean from the table of contents that the doctrine defeats the assertion of at least some defenses asserted by accused infringers, who made some sort of assignment earlier. That eases the judge into the more detailed discussion of the doctrine the brief will offer.
Of course, most briefs feature hierarchically organized tables of contents, but the entries are often drafted asymmetrically or cluttered in a way that makes the arguments’ relationships to one another less clear than they might be. Consider the following very simple table of contents from a motion to dismiss a complaint:
I. The Complaint Should Be Dismissed Because It Does Not Comply with F.R.C.P. 12.
A. The Complaint Does Not Plausibly Allege That the Bank’s Conduct Proximately Caused the Attacks.
B. The Complaint Fails to Plausibly Allege That the Bank Engaged in an Act of International Terrorism.
This table effectively indicates that the movant is seeking dismissal on two grounds and that both relate to the implausibility of the complaint’s allegations. But the slightly different phrasings of I.A and I.B. obscure the similarity and equivalent force of each ground. The following revision makes these symmetries clearer:
I. The Complaint Should Be Dismissed Because It Does Not Comply with F.R.C.P. 12.
A. The Complaint Does Not Plausibly Allege That the Bank Proximately Caused the Attacks.
B. The Complaint Does Not Plausibly Allege That the Bank Engaged in an Act of International Terrorism.
Sometimes making the symmetries clearer simply requires moving the most important idea in each sentence to the end of the sentence. Consider:
I. The Lower Court Erred in Finding That Harris Had Violated the Judgment with the Requisite Intent.
A. The Lower Court Erred in Finding That Harris Had Willfully Violated the Judgment.
B. The Lower Court Erred in Finding That Harris Had Inexcusably Violated the Judgment.
If you revise the second-level entries of this table so that “Willfully” and “Inexcusably” appear at the end of each, you will make the difference between the grounds of each alternative argument clearer:
I. The Lower Court Erred in Finding That Harris Had Violated the Judgment with the Requisite Intent.
A. The Lower Court Erred in Finding That Harris Had Violated the Judgment Willfully.
B. The Lower Court Erred in Finding That Harris Had Violated the Judgment Inexcusably.
Entries that, to the extent possible, use parallel constructions and word placements to emphasize arguments’ similarities and differences enable the judge to read the table of contents as an X-ray of the brief’s logic.
Making entries crisper also helps the table of contents serve this function. A table like this has rhetorical force:
I. Petitioner’s CSA and CSA-Dependent Convictions Should Be Reversed Because a Physician Authorized to Prescribe Controlled Substances May Not Be Convicted Unless She Acts Without a Good Faith Medical Purpose.
A. The CSA’s Text, Structure, and History Show That Physicians Must Be Permitted to Assert a Defense of Good Faith Medical Purpose.
B. The ‘Good Faith, Medical Purpose’ Standard Accords with the Subjective Good Faith Standard Adopted by the First, Seventh and Ninth Circuits
C. At a Bare Minimum, Any ‘Objective’ Good Faith Standard Must Afford Physicians Breathing Room for Honest Departures from Professional Norms.
II. Even Under an ‘Objective’ Good Faith Standard—Indeed, Under Any Circuit’s Law but the Eleventh’s—Petitioner’s Convictions Should Be Reversed.
But shortening the fairly long entries will make the table easier to take in, especially when reading vertically:
I. Petitioner’s Convictions Should be Reversed Because the CSA Does Not Authorize Conviction If the Physician Acts with a Good Faith Medical Purpose.
A. The CSA Recognizes the Defense of Good Faith Medical Purpose.
B. Three Circuit Courts of Appeals Have Recognized the Defense of Good Faith Medical Purpose.
C. Alternatively, Any Objective Standard Must Afford Physicians More Professional Latitude Than the Standard Under Which Petitioner Was Convicted.
II. Even Under the Objective Standard Applied by the Court of Appeals, Petitioner’s Convictions Should Be Reversed.
Eliminating unnecessary words takes on heightened importance in drafting table of contents entries because their block-indented, single-spaced text makes them inherently harder to read than textual sentences. The entries, even deeply indented, should never on brief paper exceed four lines of text, preferably fewer. And on the subject of formatting, do not use ALL CAPS for entries or their associated textual headings. See Seventh Circuit Practitioner’s Handbook for Appeals 176 (2020). ALL CAPS are unnatural and imply agitation. For high-level entries (I., A., etc.), use initial caps instead; for lower-level (1., a., etc.), capitalize as one would capitalize a textual sentence.
Once you have a good structure for the table of contents, the next step is to refine the wording of each entry to make the structure and content of the arguments even clearer. Some ways to do this will be familiar. The entries should be full, declarative sentences. Like sentences in briefs generally, the entries should omit all unnecessary words and include all necessary words. They should eschew bombast, sarcasm, and idiosyncrasy. See generally David Greenwald, The Sentence: A One-Dimensional Approach, Litigation, Spring 2023.
In addition to these important generalities, a few pointers specially apply to table of contents entries:
1. State the reason for each desired result. To permit the table of contents (and corresponding textual headings) to serve as a summary of argument, it is often useful, space permitting, for the entry to contain a succinct statement of the main reason why the argument should prevail. You typically do this using the word “because”:
The claim for trespass should be dismissed because Plaintiff has not alleged causation.
Dr. Wang’s expert testimony should be admitted because his opinions are based on a reliable method.
Harrison’s testimony should not be credited because Harrison was not present at the site of the murder.
The phrasing above is better than the following:
The claim for trespass should be dismissed.
Dr. Wang’s expert testimony should be admitted.
Harrison’s testimony should not be credited.
Even though the second examples are shorter, the first are better because they allow the judge to get a sense of the arguments’ content. In drafting such “because” clauses, the challenge is to make them succinct. If that challenge can be met, they are preferable.
An important exception to the principle of including “because” clauses in entries appears when an entry signifies the grouping of several related arguments or arguments. These pure grouping entries should simply state the desired result, with the several reasons for the result appearing in the immediately subordinate entries:
I. The Claim for Trespass Should Be Dismissed.
A. The Claim for Trespass Should Be Dismissed Because Plaintiff Has Not Alleged Causation.
B. The Claim for Trespass Should Be Dismissed Because Plaintiff Has Not Alleged That He Owned the Property.
C. The Claim for Trespass Should Be Dismissed Because Plaintiff Has Not Alleged That He Suffered Any Compensable Injury.
Although one could have included a “because” clause in the first-level heading, the resulting entry, articulating each of the three bases for dismissal, would have been so long as to be unwieldy. In that common situation, the higher-level, headline entry should omit any statement of reason, while the lower level should state them individually.
There are also contexts in which the entry can merely state the reason without a preceding “because”:
I. The Claim for Trespass Should Be Dismissed.
A. Plaintiff Has Not Alleged Causation.
B. Plaintiff Has Not Alleged That He Owned the Property.
C. Plaintiff Has Not Alleged That He Suffered Any Compensable Injury.
Even though “because” does not appear in any heading, the parallel syntax and content of the lower-level argument entries clearly summarize the reasons for the various arguments. That is the goal. This abbreviated approach is necessary when entries would become too long without this compression. Otherwise, it is a matter of taste.
2. Where possible, describe parallel arguments using parallel syntax. Note that in the two preceding examples, entries on the same levels have a similar syntactic form. In the first, all four entries follow the form “The Claim for Trespass Should Be Dismissed”; and the three subordinate all follow the form “The Claim for Trespass Should Be Dismissed Because Plaintiff Has Not alleged. . . .” In the second, all three second-level entries follow the form “Plaintiff Has Not Alleged. . . .” This parallelism is deliberate. A less careful drafter might have drafted the entries as follows:
I. The Claim for Trespass Should Be Dismissed.
A. The Court Should Dismiss the Trespass Claim Because Plaintiff Has Not Alleged Causation.
B. The Trespass Claim Should Be Dismissed Because Plaintiff Did Not Own the Property.
C. Compensable Injury Has Not Been Alleged.
Each of these entries is fine as a stand-alone argument heading. But when presented together, their different syntactic structures obscure the relationships among the three arguments and the rubric under which they fall. The judge should be able to see from the way in which the A., B., C. entries are articulated that Argument I consists of three independent bases for dismissal, each based on the plaintiff’s failure to allege three essential elements of his claim (causation, standing, and injury). Parallel syntax, as in the two examples from the two preceding paragraphs, helps the judge see that.
3. Use the passive voice to show similarities or differences among related arguments. In the foregoing examples, many of the entries have been cast in the passive voice. That choice was not inevitable. One of the preceding exemplary tables could have read as follows:
I. The Court Should Dismiss the Claim for Trespass.
A. The Court Should Dismiss the Claim for Trespass Because Plaintiff Has Not Alleged Causation.
B. The Court Should Dismiss the Claim for Trespass Because Plaintiff Has Not Alleged That He Owned the Property.
C. The Court Should Dismiss the Claim for Trespass Because Plaintiff Has Not Alleged That He Suffered Any Compensable Injury.
These four entries are very good sentences. Each could appear in the text of the argument and, phrased actively as they are, would probably be better than their passively voiced counterparts. But in the context of a table of contents, the passively voiced entries are superior:
I. The Claim for Trespass Should Be Dismissed.
A. The Claim for Trespass Should Be Dismissed Because Plaintiff Has Not Alleged Causation.
B. The Claim for Trespass Should Be Dismissed Because Plaintiff Has Not Alleged That He Owned the Property.
C. The Claim for Trespass Should Be Dismissed Because Plaintiff Has Not Alleged That He Suffered any Compensable Injury.
By casting the entries in the passive voice (“The Claim for Trespass Should Be Dismissed. . . ”), you allow the judge, reading quickly and vertically, to see immediately the topic of the headed argument—“The Claim for Trespass”—as opposed to some other claim. Because a primary goal of the table of contents is to show the relationships between arguments, pushing that topic to the front of each indented entry serves that purpose better than burying it in the middle.
Just as the passive voice can, as above, help show the unity of related arguments, so too it can be deployed to put a spotlight on their relevant differences:
I. The Court Should Dismiss the Action.
A. The Court Should Abstain Because the Action Presents a Political Question.
B. The Court Should Not Entertain the Action Because Its Claims Are Federally Preempted.
C. The Court Should Dismiss the Action Because Its Claims Were Previously Adjudicated.
By using the passive voice in entries B (“. . . Are Federally Preempted”) and C (“. . .Were Previously Adjudicated”), the drafter can place at the end of each the words that show the distinguishing feature of each of the three independent bases for decision. In the context of a table of contents, these distinctions are the most important ideas to emphasize. Placing the words that make these distinctions at the end of each sentence gives them that emphasis.
Nearly every table of contents entry articulated as a full sentence will present a choice between the active and passive voice. Make that choice thoughtfully, mindful of the special purpose the table of contents serves.
4. Use “should,” not “must”: In the foregoing examples, the entries have, in describing the requested judicial action, used the word “should”:
I. The Court Should Dismiss the Action.
A. The Court Should Abstain Because the Action Presents a Political Question.
B. The Court Should Not Entertain the Action Because Its Claims Are Federally Preempted.
C. The Court Should Dismiss the Action Because Its Claims Were Previously Adjudicated.
rather than “must”:
I. The Court Must Dismiss the Action.
A. The Court Must Abstain Because the Action Presents a Political Question.
B. The Court Must Not Entertain the Action Because Its Claims Are Federally Preempted.
C. The Court Must Dismiss the Action Because Its Claims Were Previously Adjudicated.
Even though “must” is more legally accurate when referring (as above) to non-discretionary grounds for dismissal, its use here would be a subtle, psychological mistake. No one likes to be told they must do something even when they are in fact so obligated. Treat the judge with the deference afforded to all powerful individuals with free will. Use “should” instead of “must,” and then make your arguments so powerful that the judge would rule for your client even if the mandatory determination were discretionary.
5. Avoid compound entries. Inherent in the notion of an outline is that each entry should state a single argument. Those arguments will often have subarguments, but the outline fulfills its function as a decision tree most effectively if individual subarguments occupy their own individual subordinate levels.
It follows that compound entries like the following are suboptimal:
Compound sentences like these have their place in the text of the brief, especially in textual summaries of argument. But in a table of contents, they obscure the branches of the arguments’ logic. Thus, they undermine one of the unique strengths of such tables.
There are two ways to revise a compound entry. The first is to recast the entire entry—Plaintiff Waived Any Argument That Defendant Consented to Jurisdiction, and That Argument Is Meritless in Any Event—as a single, more general entry—Defendant Did Not Consent to Jurisdiction. The second is to break up the entry—The Trial Court Properly Declined to Instruct the Jury on Manslaughter; Alternatively, Any Error in Omitting the Instruction Was Harmless—into two entries:
A. The Trial Court Properly Declined to Instruct the Jury on Manslaughter.
B. Any Error in Omitting the Instruction Was Harmless.
Sometimes it is best to combine the two approaches:
I. The County Prosecutor Should Be Reinstated.
A. The Executive Order Removing the County Prosecutor Does Not Allege Any Violation of Any Statutory Duty.
B. The County Prosecutor Has No Duty to Follow the Policies of the Governor.
Use whichever of these ways works best in light of the overall structure of your argument and the need for or desirability of more or fewer headings in the brief.
In addition to serving as an X-ray of the structure of the brief’s arguments, the table of contents can also ease the judge into the facts of the dispute. To be sure, the table of contents is not the place to attempt to narrate facts or the procedural history of the dispute; that is the office of background statements. But the table of contents can usefully begin to familiarize the judge with the dispute’s who, what, when, and where. That not only makes the ensuing background statements marginally easier to follow but also, perhaps more importantly, makes abstract, clinical argument entries more vivid and concrete. There are two ways to achieve those twin objectives.
1. Include allusions to facts. It is generally possible to work into the text of at least some entries allusions to the setting in which the dispute arises or to the content of provisions governing the dispute. So long as the allusion does not unduly lengthen the entries and does not repeat information in prior entries, including the allusion is generally helpful. Consider the following excerpt from the table of contents in an insurance coverage dispute:
I. The Invoked Exclusions Do Not Preclude Coverage.
A. The Wear-and-Tear Exclusion Does Not Preclude Coverage.
B. The Faulty Workmanship Exclusion Does Not Preclude Coverage.
The entries become a bit more inviting when they allude to the nature of the claim for coverage and of the exclusions that lie at the core of the dispute:
I. The Invoked Exclusions Do Not Preclude Coverage for Damages Resulting from the Release of 90 Tons of Liquefied Chlorine from Burlington’s Tank Car.
A. The Wear-and-Tear Exclusion Does Not Preclude Coverage Because the Tank Car’s Crack Did Not Result from a Gradual Degradative Process.
B. The Faulty Workmanship Exclusion Does Not Preclude Coverage Because the Cause of the Tank Car’s Crack Is Unknown.
To be sure, the succinctness of the original entries are a plus, but the increased informational content of the contextualized entries justifies their moderately greater length.
Here is another example from a brief concerning class certification:
I. The District Court Did Not Abuse Its Discretion in Certifying a Class.
A. The District Court Applied the Proper Standard for Assessing Whether Defendant Unlawfully Exercised Monopsony Power.
B. The District Court Properly Certified a Liability Class.
II. The District Court Properly Followed In re Polypropylene Antitrust Litigation.
Seasoning the entries with some context is helpful even though it lengthens them modestly:
I. The District Court Did Not Abuse Its Discretion in Certifying a Class of Oil and Gas Lessors in Eastern Laramie County.
A. The District Court Applied the Proper Standard for Assessing Whether Defendant, Through Its Capture Program, Unlawfully Exercised Monopsony Power.
B. The District Court Properly Certified a Liability Class of Lessors Who Were Unable to Lease Their Oil and Gas Fields Owing to Defendant’s Capture Program.
II. The District Court Properly Followed In re Polypropylene Antitrust Litigation’s Dispensation from Proof of Individual Class Member Impact.
No judge coming to this case cold will understand from the table of contents what the Capture Program is or the holding of In re Polypropylene Antitrust Litigation. That is OK. The point is to plant in the judge’s mind a few seeds from which deeper understanding will emerge a few pages later. Some lawyers may retort that by the time a judge takes up a class certification motion, she has undoubtedly resolved several motions and is thus already familiar with the case. Perhaps, but even skilled, engaged judges benefit from being reminded of the context of a complex case that is only one of hundreds vying for attention on their active docket. And although the judge may already be familiar with the case, her perhaps newly hired clerk will not have the same background to draw upon.
2. Descriptive pronouns. Lawyers steeped in a case like to use numerical pronouns: e.g., Claim 4, Count II, the ’336 Patent, Allegations 21–34, Section 4.3. This is understandable. In a complex case, such numerical pronouns are often the most efficient way to discuss the various issues the case presents. But for a newcomer to the case, they can exasperate. They communicate nothing about the substance of the enumerated claim, count allegation, or contract provision. Instead of or in addition to numerical pronouns, offer a descriptive phrase:
Claim 4 The Trespass Claim
Count III The Felon-in-Possession Charge
The ’336 Patent The Compound Patent or The Patent-in-Suit
Allegations 21–34 The Reliance Allegations
Section 4.3 The Force Majeure Clause
To be sure, it will be appropriate, at least at the outset of background statements and arguments, to refer to the referenced claim, count, etc., with its proper number. But consider replacing the numerical pronoun after its first appearance with a more descriptive term like those listed above. Briefs using descriptive pronouns are easier to follow.
About the only reason not to try to de-number the pronouns in a table of contents is if you are responding to a brief that uses numerical nomenclature. In that common situation, it may be preferable to adopt the same nomenclature as the opening brief so that the judge does not have to learn a new system when he turns to your brief. In opening briefs, however, descriptive nomenclature will help make the judge’s learning curve a bit less steep.
The table of contents offers a special opportunity to give the judge an overview of the dispute at precisely the point in the brief—the first page—at which an overview offers its greatest value. A well-set table of contents provides both a high-level view of the architecture of an argument and a helpful X-ray of the beams that support it. To help this table play that important forensic role, make the syntactic structure of related entries track the underlying arguments’ structure and relationships. And give the entries more vivid force by including, where possible, allusions to the dispute’s facts.
