Argumentative headings.

• Jurisdiction: United States

Section 30. Argumentative headings.—Headings should always be argumentative rather than topical or even assertive. For instance, write "This suit is barred by laches because brought twenty-five years after the issuance of the original certificate" rather than "This suit is barred by laches." The first gives the argument in a nutshell, the second does not—though certainly the second assertive heading is infinitely more effective than the merely topical "The question of laches." Similarly, say "Appellant had notice of the defect and therefore is not a holder in due course" in preference to "Appellant is not a holder in due course" or to "Appellant's contention." Otherwise stated, employ the technique of the American newspaper headline rather than that of the English: our journalists say "Bums Down Braves, 9-2," whereas theirs write "Test Match at Lords."

Perhaps the greatest disservice an appellee's lawyer can do his case is to write, "Replying to Appellant's Point I." This is not even topical, and in consequence is completely blind, giving the judicial reader no clue whatever to the substance of the argument. It follows that the "Replying to" type of heading is completely unhelpful—and it is just as bad when used in an appellant's reply brief.

Always set out your contentions affirmatively—and for maximum effectiveness formulate your headings so that they will be argumentative.

Subheadings should likewise be argumentative rather than topical or merely assertive, primarily because all are collected in the index at the beginning of the brief, and are thus frequently read first by any judge who wants to get the argument in abbreviated compass.

You lose a lot, therefore, if your subheadings are not precise and specific. If your headings and subheadings are properly argumentative, your argument starts with the index at page i of the brief, and the court will not need to go beyond that point to grasp the essence of your position.

Collecting all the headings and subheadings in the index has also this important incidental advantage: it discloses whatever lack of uniformity is quite likely to have crept into them in the course of your writing, and so provides a convenient opportunity for strengthening revisions (and, it may well be, for catching misprints and other infelicities).

Perhaps this is as good a place as any for the admonition that a main heading should never be followed by just a single subheading. If a proposition cannot be divided into more than one part, it is merely being restated. Therefore, if you find yourself unable to work out more than one subheading, the difficulty is that your main heading is improperly formulated; you had better rewrite it. (I know that the old books on argumentation used to prescribe something that went like this: "Oscar is entitled to rights and privileges, for: (a) Oscar is a citizen." My point is that effective argumentation in a brief requires that this proposition be rewritten either as "Oscar is a citizen and is therefore entitled to rights and privileges," or as "Oscar is entitled to rights and privileges because he is a citizen." The first is probably preferable...