Each of these is or can be very important. Yet each is sometimes considered an afterthought, something to throw together at the end if the drafting process. That is wrong. More attention to these parts of the brief will make the whole brief better.

Table of Contents

This is the first substantive thing your reader sees. Why would you put off doing it, and giving yourself as much opportunity as possible to make it sing?

A TOC is an aid to the reader. I find it indispensable to the writer. If for some reason you do not start writing by having an outline, which naturally translates into headings for use in a table of contents, then add a TOC by your second draft.

A California appellate justice has been quoted as saying: “A good table of contents, and the rest of the brief is filler.” Aspire to this goal.

Another way of stating this: “A good table of contents, and the reader is convinced.” Or at least strongly inclined to your position.

How do you achieve that? When your TOC describes the facts and law necessary for you to win.

Every heading should be more than a mere mile-marker. (Except the Level 1 headings like “INTRODUCTION,” “FACTS,” “ANALYSIS” aka “ARGUMENT, “CONCLUSION”.) It should be a zinger advancing your argument.

For example, I received a brief with this table of contents:

NRAP 26.1 DISCLOSURE ………………………………………………
I. JURISDICTIONAL STATEMENT ………………………………….
II. ROUTING STATEMENT ………………………………………………
III. ISSUES ON APPEAL …………………………………………………..
IV. STATEMENT OF THE CASE ……………………………………..
V. FACTUAL BACKGROUND………………………………………….
VI. LEGAL ARGUMENT …………………………………………………..
VII. CONCLUSION …………………………………………………………….
CERTIFICATE OF SERVICE …………………………………………….

All that told the court was that my opponent had read the Nevada appellate rules about the required elements of a brief and their required order. This TOC told the court nothing about the merits of my opponent’s case. So, it is wasted space.

In the Facts section, this is common and sub-optimal:

1. Plaintiff is hired.
2. Plaintiff undergoes performance reviews.
3. Plaintiff is terminated and sues.

Better something like:

1. Plaintiff is hired to _, an at-will position requiring careful attention to _.
2. Plaintiff’s performance reviews consistently show poor performance at _.
3. Even after counseling and discussions, Plaintiff’s performance does not improve, and in some ways gets worse.
4. After careful consideration by HR and his superiors, Plaintiff is let go for performance reasons.

This way, your table of contents tells a story. You have already framed matters and preconditioned the reader toward your position.

Give just enough detail but not too much. Like dates. They usually should not be in the headings unless the specific date is significant (e.g., timeliness of service).

Attorneys are usually better about descriptive headings in the argument section, but not always.

Common but sub-optimal:

The first cause of action should be summarily adjudicated in
Client’s favor because it has no merit.

Well, that doesn’t tell us anything about the cause of action other than that the author concludes it is meritless. Your reader already suspects that is your position, and you haven’t given the reader any reason to come to the same conclusion.

Better:

The Court should grant partial summary judgment for Client on Plaintiff’s breach of contract cause of action because there was no contract.

or

The Court should grant partial summary judgment for Client on Plaintiff’s breach of contract cause of action because Client paid everything required under the contract.

or

The Court should grant partial summary judgment for Client on Plaintiff’s breach of contract cause of action because Plaintiff repudiated the contract by taking another job.

What are the reasons to include a TOC starting your first draft?

• To ensure you are covering all the arguments you want to cover.
• To edit and change as your arguments and text is modified.
• To achieve parallelism among headings where appropriate.
• To make sure your headings are all in the same case. E.g., Many (like me, Garner and Scalia) believe that all headings should be in sentence case.

“Oh, it’s just the headings. I’ll be editing them as I revise the document, I do not need to see them in table form.” Nonsense. You do not know what the table of contents looks like until you have a table of contents to look at.

Again, this is the first thing your reader sees that describes the substance of your case. You don’t get a second chance to make a first impression.

Introduction

This should explain why we win, starting with the first sentence. E.g., “The Court should grant summary judgment in this asbestos personal injury case, because there is no evidence that Mr. __ was ever exposed to asbestos from any MyClient product.” Exceptions to this first-sentence rule are rare.

The introduction should not be a mini-fact section. Too many first sentences put right up front facts to which the brief never refers again (like the date plaintiff was hired, or the date of the complaint, or work history details), and does not tell the reader why we win.

The phrase “elevator speech” may get overused, but it explains what to look for in an introduction. What would you say if you only had 15-30 seconds to convince someone? What are the most important, attention-getting reasons why you win? Why wouldn’t you start your brief with those?

The introduction should summarize your best and most persuasive arguments. You started framing the issues for the reader with your great table of contents entries, and now in the Introduction you add flesh and blood to those bones.

The introduction should summarize your best and most persuasive arguments. You started framing the issues for the reader with your great table of contents entries, and now in the Introduction you add flesh and blood to those bones. Extra benefit: you will be repeating and therefore reinforcing those later in the brief. In contrast, specific dates and numbers are rarely balls you need your reader to keep mentally juggling.

Some people put off writing the introduction until late in the briefing process on the understandable rationale “how can I know what my best points are to summarize until I’ve written them out?” The answer is you do have ideas early in the process, and you can always change and edit as the brief develops. Like the TOC, there is considerable benefit to starting this early and giving yourself maximum time to edit and refine.

Conclusion

“For all the foregoing reasons, this Court should rule in our favor.” Common, nearly omnipresent. Also cheap, and suboptimal. It sounds like you are tired of writing the brief, and you expect your reader to be tired of reading it.

True, if you have not convinced your reader by this point, you are unlikely to do so in the conclusion. That result is all but guaranteed if you rely on “all the foregoing reasons” that the reader has already not accepted.

You may, however, still persuade someone “on the fence” if instead your conclusion re-states and perhaps re-frames your best points once again. And you’ll have more pride as a writer and advocate.

The introduction and the conclusion are the parts of the brief where you can most get away with summary, argumentative, conclusory statements; where you can be creative and, if appropriate, rhetorical. Use, don’t squander, these opportunities!

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Don Willenburg is the co-chair of the appellate practice group at Gordon Rees Scully Mansukhani and chair of the amicus committee of the Association of Defense Counsel of Northern California and Nevada. He is luckily and undeservedly married to the most wonderful woman in the world, and they enjoy cycling and playing the ukulele (though not simultaneously).