On Introductions To Briefs That Are Both Generic And Harmful

// When I give my “book talks” about The Curmudgeon’s Guide to Practicing Law (affiliate link), I explain that there are three classic bad introductions to a brief.

The first bad introduction is an irrelevant chronology: “Plaintiff filed the Complaint on January 1. Defendant removed the Complaint on January 15.  Plaintiff moved to remand on February 1. Defendant opposed remand on February 15.”

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If these dates have nothing to do with why the defendant’s motion to dismiss should be granted, why include the irrelevant facts? And why waste precious space laying out those facts in the introduction? The reader is thinking: “I’m three paragraphs into the brief; I’m bored; and I hate you.” That’s no way to win.

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The second classic bad introduction is generic: “This is a case in which summary judgment should be granted!”

That could be the first sentence of any summary judgment brief filed in the history of American jurisprudence. Because it’s utterly generic, it’s utterly unpersuasive.

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The third classic bad introduction is both generic and harmful: “Although motions to dismiss are infrequently granted, this case presents one of the rare exceptions to that general rule.”

What does that introduction tell the reader?

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The standard of review is against me. I should lose. The rest of this brief is a lie.

That’s probably not the best way to start.

I then go on to explain in my book talks the characteristics of a good introduction.

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Imagine my surprise several months ago when I received (or perhaps I simply imagined this; I’m not one to disclose attorney-client secrets) a draft brief (from one of the leading law firms in the country) that started with this opening sentence: “Although class certification is usually granted in [cases such as this one], this case presents a rare exception to that general rule.”

“My God,” I thought. “It’s a classic bad introduction! It’s both generic and harmful. Who would have expected such a thing from these lawyers?”

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I dutifully wrote back: “Please think again about the introductory sentence. I’d like to start with one of the strongest arguments in our favor. I’m not sure that opening our brief by saying that class cert is usually granted in these types of cases fits that bill.”

The lawyers wrote back: “We understand your concern with the opening sentence, and we’ll see if we can replace it. But it is certainly true that class certification is usually granted in this type of case.”

Of course!

But the fact that something is true doesn’t mean that it’s the perfect introduction to a brief.

A thing could be true, but that thing could show why your motion should lose.  Perhaps that wouldn’t be the best opening sentence of a brief.

A thing could be true, but irrelevant. Perhaps that wouldn’t be the best opening sentence of a brief.

Many things are true.

Fewer things constitute good introductions.

Many judges won’t read intently beyond the introduction of your brief. Make sure you start in the right place.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

Topics

Biglaw, In-House Counsel, Mark Herrmann