Laura A. Wytsma is partner in Loeb & Loeb’s Los Angeles office, where she focuses on appellate and patent litigation.
The introduction of a legal brief can make or break a case.
You never get a second chance to make a first impression,” reads a quote variously attributed to Oscar Wilde, American humorist Will Rogers, and even Mark Twain. Whatever its origin, the quote reminds us that once formed, first impressions are difficult to change.
Author Malcolm Gladwell has written extensively on the importance of first impressions. In his book Blink: The Power of Thinking Without Thinking, he explains that we jump to a series of conclusions in just two seconds – or the “blink” of an eye – when we meet someone for the first time or skim the first few sentences of a book. The powerful conclusions formed within those few seconds will continue to color our beliefs and influence our decisions.
Therefore, lawyers should pay especially close attention when drafting an introduction. In the classic On Writing Well, William Zinsser explains that “the most important sentence in any article is the first one. If it doesn’t induce the reader to proceed to the second sentence, your article is dead.” Although a judge may be obligated to read on past a dull opening sentence, his or her first impressions of your argument will already have been formed.
Unfortunately, as famed trial lawyer Gerry Spence has noted, most lawyers “speak and write as if they live in a repository for dead bodies. When they write briefs that some poor trapped judge must read, they fill them with heavy, gray, lifeless, disgustingly boring word gravel – piles of it, tons of it.” Don’t inflict an introduction full of word gravel on your judge; introduce your position as compellingly as possible, as quickly as possible, and as briefly as possible.
Start with a short, memorable sentence. An introduction, Zinsser explains in On Writing Well, should “capture the reader immediately and force him to keep reading. It must cajole him with freshness, or novelty, or paradox, or humor, or surprise, or with an unusual idea, or an interesting fact, or a question.” Though I do not suggest using humor, briefs should open with a punchy sentence that gets right to the point. The French have a great word for this: aperÃ§u. Roughly translated, it means an immediate glimpse or insight, and it describes a brief comment with an illuminating point.
When crafting introductions, remember the opening lines of great literature – they immediately grab the reader’s attention. For example, George Orwell’s opening to 1984: “It was a bright cold day in April, and the clocks were striking thirteen.” Now we want to know more – especially how a clock can strike thirteen.
An introduction can presage all that follows. For example: “Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.” That sentence alone captures the premise of Franz Kafka’s The Trial.
One of my favorite introductions is from One Hundred Years of Solitude by Gabriel GarcÃ-a MÃ¡rquez: “Many years later, as he faced the firing squad, Colonel Aureliano BuendÃ-a was to remember that distant afternoon when his father took him to discover ice.” Why is the colonel facing a firing squad, we wonder, and are compelled to read on.
Of course, legal writing does not afford as much flexibility as literature, but you can – and should – get creative with your introductions. There is nothing more tedious in the practice of law (except perhaps responding to form interrogatories) than a motion that begins: “Pursuant to rules so-and-so, Plaintiff respectfully submits this memorandum in support of its motion for such-and-such.” Or a brief that opens: “This is an appeal arising out of the dismissal of plaintiff’s complaint.” The judge already knows this from reading the document’s caption.
Don’t waste time defining John Smith as “Smith or plaintiff.” If you can’t make up your mind whether he is Smith or the plaintiff, you’ve already confirmed your poor advocacy skills. No lengthy procedural summary or extensive overview of the law is needed at the outset.
Consider starting your introduction with a quote from a key exhibit or deposition. For example, an expert’s striking concession that he had not performed “any market analysis” opened a summary judgment motion seeking dismissal of antitrust claims. The successful motion jumped straight to the key dispositive point without any introductory fluff.
The introduction is also a good place to humanize your clients. Be sure to include a memorable fact that will make judges and clerks relate to them as persons. This is particularly important when you represent a company – find the human side of your case and share it.
Cover a few key themes or arguments, weave in a punchy, memorable quote from your facts or cases, and offer a compelling reason why your client should prevail as a matter of fairness. Help orient the court so that it looks for reasons to rule in favor of your client. Your client’s position may be legally correct; but is it just? Make the two issues converge in your introduction.
Sometimes it’s best to use imagery at the outset. In lieu of a punchy first sentence, consider opening with picture. Images can be particularly effective in cases involving technology, but they can be used in all areas of law. A colleague’s introduction to a motion addressing false advertising and alleged consumer confusion consisted of a photograph showing two competing brands of bottled water, side-by-side, above this caption: “Is anyone really confused?” The comparison of two very dissimilar bottles was enough for any reader to understand that our client’s product had caused no confusion in the marketplace warranting Lanham Act liability.
Don’t forget that appearances matter. An introduction littered with typographical errors will lose the reader’s confidence. After all, if you fail at simple spelling and grammar, should your substantive legal judgment be trusted?
A final note on introductions: Many a court’s rules dictate the parts of a brief and their order, but not all contemplate introductions (the Federal Rules of Appellate Procedure, for example, do not). However, I have never seen a court reject a brief because it includes an “Introductory Statement.” And I have never read a persuasive appellate brief without an introduction.