Writing to Win: The Legal Writer by Steven D. Stark

Writing to Win: The Legal Writer by Steven D. Stark

Author:Steven D. Stark
Language: eng
Format: mobi
ISBN: 9780307888747
Publisher: Crown Publishing Group
Published: 2012-04-23T16:00:00+00:00

II. The Sixteen Rules of Writing Arguments

How, then, should you put these principles into play in a brief or memorandum of law? The following rules should help.

1. Lead with your best argument, though you must deal with procedural issues first.

Since any advocate wants to set the terms of a debate, you don’t want to follow your adversary’s outline of issues. Rather, lead with your strongest argument, generally following with your second strongest, and so on. This is particularly true for those who are filing a responding brief. As Supreme Court Justice Ruth Ginsburg once advised, “Respondents or appellees do well to lead from strength, telling their side of a case affirmatively, instead of in a series of ‘not so’s’ keyed to appellant’s presentation and provoking the court to wonder: ‘Doth this appellee protest too much?’ ”

A strong start is essential, often presented in an introduction which the judge reads before anything else. Professors Charles Fried and Kathleen Sullivan did this in their “Summary of Argument” in the Supreme Court flag-burning case United States v. Eichman, 496 U.S. 310 (1990). Fried and Sullivan successfully attacked the 1989 Federal Flag Act, which prohibited knowing defacement of the American flag as unconstitutional. They began the section by saying (citations omitted):

The flag is nothing but a symbol. It is only sometimes government property. It is not part of some regulatory scheme—like the draft card in United States v. O’Brien, or Little Bird of the Snow’s social security number in Bowen v. Toy. A symbol is only a form of communication. It communicates emotions, ideas, or attitudes. Communicating is what symbols do. And if something is only a symbol, it does nothing else than communicate. The strong emotions displayed in the dissent in Texas v. Johnson and in the debates on this Act were all concerned with the meaning and power of a symbol, of an insubstantiated idea.

Burning the flag in the circumstances charged here was also nothing but a symbol. It too was an act of communication and only an act of communication. The crime charged here was not the destruction of another’s property. It was not an interference with a government regulatory program. It was not an intrusion on the physical space or tranquility of others. It was not a nuisance or an act of environmental pollution. It was a statement.

Because judges want to deal with procedural issues before they get to the substance, you must do the same. There is nothing to prevent you, however, from dealing with the procedural issues quickly and then returning to them at the back of the brief. For example, any judge who has been on the bench more than a week knows the standards for summary judgment. If you have such a case, you should briefly discuss those standards at the beginning of the argument section of your brief. However, a short paragraph is often enough, and you can postpone a further discussion until the end. By dealing with the procedural issues quickly, you lead judges


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