Show Me the Way, 1118 COBJ, Vol. 47, No. 10 Pg. 14

Author:By MICHAEL A. BLASIE
Position:Vol. 47, 10 [Page 14]
 
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47 Colo.Law. 14

Show Me the Way Using Headers More Effectively.

Vol. 47, No. 10 [Page 14]

The Colorado Lawyer

November, 2018

Modern Legal Writing

By MICHAEL A. BLASIE

Headers are helpful. Use them.1

Use Headers in a Statement of Facts

Think of all the good reasons you use headers in your argument section. Those same reasons apply to a Statement of Facts. So use headers there too.2

When you do come across the rare Statement of Facts that uses headers, it often contains ones like these:

A. The December 22, 2010 Common Interest Agreement B. Defendant's Negligence

These are useless. The date and tide of the document are probably irrelevant.3 The first header does not engage the reader because none of us wants to read about common interest agreements. Neither header provides a fact essential to a court's ruling. In fact, the second header is a legal conclusion (not a factual one). They are neither memorable nor relevant. In short, they say nothing about your case.

But it doesn't have to be this way. Ross Guberman plucked a good example from the Martha Stewart case.4 See how the government used headers in a Statement of Facts section to defend the convictions:

A. The Government's Case

1. "Get Martha on the Phone"

2. "Peter Bacanovic Thinks ImClone is Going to Start Trading Downward"

3. Stewart Sells Her ImClone Stock

4. "Something is Going On With lmClone and Martha Stewart Wants to Know What"

5. Stewart's Conversation With Mariana Pasternak

6. The Investigations Begin

7. The Tax Loss Selling Cover Story

8. January 3, 2002: Faneuil Lies to Investigators

9. Bacanovic Changes the Cover Story

10. January 7, 2002: Bacanovic Lies to Investigators

11. Stewart Alters Bacanovic's Telephone Message

12. February 4, 2002: Stewart Lies to Investigators

13. February 13, 2002: Bacanovic Lies in Sworn Testimony

14. March 7, 2002: Faneuil Lies to Investigators Again

15. April 10, 2002: Stewart Lies to Investigators Again

16. Stewart's False Public Statements

17. Faneuil Reveals the Truth5

When you read these headers, a story emerges—and not just any story, a story helpful to the prosecution.[6] Indeed, while the dates are likely irrelevant to the legal standard, they aid the prosecution's narrative by showing a series of lies in only three months.

Here's an even simpler example from a Table of Contents:

A. Farm Inc. Agreed to Deliver One Hundred Eggs to Pie Corp. Every Sunday

B. One Sunday, Without Notice, Farm Inc. Delivered No Eggs

C. Without Eggs Pie Corp. Could Not Bake or Sell Any Pies That Week

D. That Week Pie Corp. Lost $1,000

From these headers you can predict this lawsuit probably contains a breach of contract claim. The headers track the elements without using legal terms like "breach" or "causation." More important, these four headers match the four factual findings needed to succeed on the claim. If the court remembers nothing else except these four factual conclusions, the plaintiff's fact section has done its job.

Phrase Argument Section Headers Persuasively

Frequently, headers state a legal conclusion without any reasoning. For example:

A. The Complaint Fails to State a Claim upon Which Relief Can be Granted

B. The...

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