Show Me the Way, 1118 COBJ, Vol. 47, No. 10 Pg. 14
| Author | By MICHAEL A. BLASIE |
| Position | Vol. 47, 10 [Page 14] |
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 Existence of a Disputed Material Fact Precludes Summary Judgment
C. Defendant's Negligence Caused Damages
These headers could appear in any brief for any case involving these types of motions or...
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