Embracing the power of “because” in headings

Appellate judges read A LOT of briefs. Odds are that they will give yours a single careful reading. After that, they’re likely to use shortcuts to remind themselves of your arguments. Different judges will rely on different sections–some like the introduction as a refresher before oral argument; some prefer the argument summary; still others will flip to the table of contents and just read the headings. All of these short forms of your argument should be honed and re-honed to make clear exactly what your asking the court to do and why.

Many headings advocate without explanation. For example:

I. The trial court erred by admitting the victim’s police interview statements.

II. The trial court abused its discretion by excluding Dr. Ramsey’s testimony.

III. Trial counsel performed deficiently. 

They are topical in the sense that they inform the court of what was wrong, but none of them sums up the why. To take care of this, always include the why by adding “because” (or its equivalent) and explaining. If you need more explanation to get to the salient points, add subheadings.

I. The trial court erred by admitting the victim’s police interview statements because they were hearsay and met no exception. 

A. They were not present sense impressions because they were given hours after the alleged crime.

B. They were not prior inconsistent statements because they were consistent with the victim’s trial testimony.

C. They were not admissions of a party opponent because a victim is not a party.

II. The trial court abused its discretion by excluding Dr. Ramsey’s testimony because, as a certified pulmonologist, he was qualified to testify about events that can trigger an asthma attack like the one the defendant had. 

III. No reasonable attorney would have held back an objection to the victim’s mother’s bolstering testimony that her daughter was “telling the truth” about the rape. 

This second set will give the court a much better refresher about your arguments. They will also find it helpful before they even start to read, because you’ve given them the gist of your arguments before getting into the details. 

So embrace the power of “because”–your arguments will be clearer to you and clearer to the court.