The Perfect Brief Part 4 - Introducing Your Brief Properly

Before we write an introduction, we should think about its purpose and ask ourselves a question:

Do we even need an introduction?

Is an Introduction Necessary?

We realize it might sound antithetical—even sacrilegious—to most lawyers, not to open a brief with an introduction, but here’s our reasoning:

Most lawyers write an introduction only because they see other lawyers do it. These introductions usually just state the obvious. When we open with a paragraph like that, the best thing that can happen is the judge won’t read it.

With judges’ patience growing thinner and word counts getting tighter, every word is precious. Don’t waste your words on sentences a judge is unlikely to read or appreciate.

If a court or jurisdiction requires an introduction, include one. But if it’s not required, we serve our case better if we first ask ourselves: Will an introduction tell the judge something she needs to know before she reads further? If the answer is no, open with your facts.

There are several situations where including an introduction would be wise; a sampling:

Our case is one of first impression.
The judge is new to a complex case with a long procedural history.
We need to tell the judge that our Motion for Summary Judgment addresses only certain counts.
So many players are involved, the judge needs a program.

Avoid Repeating the Caption

Most lawyers open briefs by repeating the information found in the caption just above the introduction. Most judges skip that paragraph because it contains nothing they need to know. So why do most briefs still open like this:

COMES NOW Montezuma Chemical Company, Defendant, in the above entitled and numbered cause, and responds to Plaintiff Ballard Chemical Company, Inc.’s Motion for Leave to File First Amended Complaint, and in support thereof would respectfully show the Court the following:

. . . when one inch above that sits a caption that reads:

MONTEZUMA CHEMICAL COMPANY’S
RESPONSE TO BALLARD CHEMICAL COMPANY, INC.’S
MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Or:

Defendant, by and through its attorneys, Abel, Baker & Charles, respectfully submits its brief in support of its Motion for Summary Judgment.

. . . when an inch and a half above that is a caption that reads:

DEFENDANT’S BRIEF IN SUPPORT OF
ITS MOTION FOR SUMMARY JUDGMENT

What shows more respect for the judge is to value his time, to give him information he needs to do his job, which, as we have mentioned several times in this series, is to seek a fair decision.

If You Do Write an Introduction, Make It Short

If an Introduction is necessary, do it quickly. You can usually frame your case for a judge in three sentences (although the second sentence—explaining the why of your position—might run to two or three sentences):

Sentence One: Your position
Sentence Two: Why you think this way
Sentence Three: What you want the judge to do about it

By giving this overview up front, you provide the judge and the clerk with the context for understanding everything that follows. For instance:

Introduction

Sentence One – Your Position: The Tlingit Tribe's unprecedented demand for site restoration distinguishes all law on ejectment proceedings and requires this court to consider two issues never addressed by another court.
Sentence Two – Why You Think This Way: Many tribes have tried to eject landowners, but no tribe has ever demanded that a landowner first restore the land to its natural state of over half a century earlier.
Sentence Three – What you Want the Judge to Do about It: Because the Tribe's demand comes 60 years after the first dike was built and poses a huge expense for Defendant Stockard, and because the Tribe's demand cannot be met without first determining the rights and duties of the United States under the Environmental Protection Agency, Stockard asks this court to allow him to do discovery into laches and to join the United States as an indispensable party.

Don’t Clutter Your Opening Paragraph with Defined Terms

For many years the trend has been away from defining terms. Although many lawyers and judges no longer use defined terms, it’s a difficult habit to shake. We advise lawyers not to define terms for three reasons:

defining terms clutters our writing, making it difficult to read;
the reader must bear the burden of keeping track of our definitions; and
definitions serve no purpose.

Using a shorter version of a long name is fine, but you don’t need to tell the judge you’re going to do that; just do it. If you mention Hamilton Regional Medical Center, and in the next sentence or paragraph you write Hamilton or Hamilton Regional or even the medical center, every reader will know what you mean; you don’t need to define it even at the first mentioning.

And rather than resort to abbreviations and acronyms to define a party, especially your client, as “FTREA,” why not call it the more pleasing “First Trust?” Note how much better this sentence sounds when we drop the definitions:

This dispute arises out of Plaintiff John Kendrick’s (“Kendrick”) employment agreement (“Agreement”) with Defendant First Trust Real Estate Advisors, Inc. (“FTREA”).

versus

This dispute arises out of Plaintiff John Kendrick’s employment agreement with Defendant First Trust Real Estate Advisors, Inc.

Even without defining terms, the next time we write Kendrick or agreement or First Trust, no one will be confused.

A Word of Caution

If you’re an associate, always check with the partner before dropping definitions, but we advise against using them because there is rarely a need to. We lawyers use defined terms as a reflex because we see every other lawyer using them, but they are almost always unnecessary. And avoiding them makes our writing smoother and easier to follow.

Conclusion

Unless you have a compelling reason to write an introduction, we would not introduce a brief. We would use the opening sentence to get the judge leaning our way immediately and follow that with more information that leans the judge toward us even further and continue until we have the judge wanting to decide for us. We’ll discuss how to gather that information to engage a judge next time in The Perfect Brief, Part 5: Developing Your Facts.

About the Author

Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.