Legalizing the appellate introduction.

• Author: Altenbernd, Chris W.
• Position: Florida

In polite society, it is rude not to introduce yourself, but if you are writing a brief to a Florida appellate court, the issue is complicated. The rule describing the required content of a brief does not describe an introduction. (1) This article suggests that the rules should be amended to replace the "summary of the argument" with an introduction that is a summary of the case that may be persuasive.

The Problem

Over the last 15 years, the number of briefs that contain an introduction has increased substantially. These introductions have grown in length, and the rhetoric of the typical introduction has grown increasingly argumentative. Especially in civil cases, a brief now frequently contains an introduction that is as long or longer than the statement of the case or the statement of the facts. This unregulated section of the brief is often longer than the two pages recommended for a summary of the argument and occasionally is longer than the five pages permitted for a summary. All too often, the introduction attacks the opposing lawyer rather than explaining the merits of the case. At best, the brief simply contains two summaries of the argument rather than one.

Responding to this trend, the Second District Court of Appeal recently posted "Practice Preferences" on its website containing the following preference:

7. Keep a Nature of the Case Statement ("Introduction") Very Brief. If the statement of the case and facts begins with an introduction about the nature of the case, the introduction should be limited to a very brief, non-argumentative statement about the case and the issue or issues presented on appeal. Outlines of substantive arguments are more proper in a brief's summary of argument section.... (2)

Although other courts have not been as openly critical of the unauthorized introduction, it is clear that more appellate judges are beginning to question the use or abuse of the introduction. However, an introduction is actually a good idea. A well-written introduction is an important part of any persuasive essay. It is critical to achieve the "superclarity" recommended by Stephen Armstrong and Timothy Terrell. (3) It is the fourth tip of Bryan A. Garner in his "Ten Tips for Writing at Your Law Firm." (4) While certainly not in the same academic league, this author has long encouraged lawyers to "front-load" persuasive writing. (5) Front-loading cannot be achieved without an introduction.

A Little Early History

A brief submitted...