Is your brief more than a few pages long?  Does it touch on more than one topic or issue, however closely related?  Then guess what!  You need headings.  Imagine reading the Encyclopedia without those neat little bold entry titles serving as treasured commercial breaks.  Or how about a two-hour stage play that was all one continuous act.  Yikes!  Most legal briefs need scenes just like most plays do.  Don’t hand the judge a sea of endless letters and spaces.  Even a short brief looks endless with page-long paragraphs and no mile markers to compartmentalize them.  Break it up with easy-to-follow signposts for quick reference, organization, and ease of use. That way, not only does your argument flow better, but it is also much more conducive to later re-reads.  Imagine a judge saying, “hey, what did that lawyer have to say about this topic again?  Let me go back and check… [at which point the judge returns to your twelve-page wordathon and suddenly loses interest].”

Very short briefs need not venture past first-tier headings.  If you’ve got a fifty page appellate brief, you may get into a second or third tier; but I wouldn’t recommend going beyond that.  Shorter briefs also enjoy the luxury of phrasal headings (“No Causation”), especially if it’s a simple issue.  However, if your brief is long or complex, I always teach that headings should be complete sentences — SHORT sentences, but complete ones.

Here is the golden rule for headings: Ask yourself, if my judge were convinced that each of my headings was a true statement, would I win the case automatically under the law?  If the answer is yes, then your headings are good.  If the answer is no, you should revise them. In other words, identify the indispensable elements that the judge must have in order to rule in your favor, craft a sentence declaring each element to be present (or proved, or ripe for a jury, or whatever), and then use those sentences in logical succession as your headings.  The body paragraphs beneath each heading should do the work of establishing what you claimed in the heading.  But the headings themselves should give the judge precisely the information he or she needs to put you in the “W” column.

Heading Option A:  Duty
Any heading is usually better than no heading, but do we really know what this lawyer is about to say?  Do we even know which side the lawyer is arguing?  if we assumed this “statement” were true, could the judge rule in this lawyer’s favor?

Heading Option B:  There is no disputed fact on the issue of duty.
This is better, but we still don’t know what the undisputed fact actually establish.  All we know is that at some point … eventually … any day now … this lawyer will hopefully finally ultimately at the end of the day get around to claiming a stance of some sort.

Heading Option C:  Big Company had a duty to protect Innocent Victim.
Ok, now we’re getting somewhere.  At least we know this lawyer represents the plaintiff, the plaintiff believes there was a duty owed, and now the judge will read the body paragraphs for evidence of that duty.  Presumably the next heading would be along the lines of “Big Company breached that duty by …”

Now, obviously, this example is hopelessly unrealistic and oversimplified.  But I just used it to demonstrate the difference between empty headings, neutral or passive headings, and headings that exert real advocacy.  That’s what lawyers are supposed to do, right?

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