Monday, June 24, 2019
Have you ever picked up a book, read the back cover and immediately set it back down, with nothing enticing you to read further? An ineffective summary of the argument can create this effect in your brief.
One of the final parts of the brief to write, the summary of the argument is often the first chance to persuade the judges. But more than that, the summary of argument serves to frame and present the thinking of the brief, and it should do so in a way that draws the judge further into the brief. Some judges read the summary of the argument first, and it’s a mistake to throw something together than is bland and doesn’t get to the heart of your argument.
Judith Fischer’s 2015 article, Summing it up with Panache: Framing a Brief’s Summary of the Argument
takes a deep dive into summaries of the argument and looks at recent Supreme Court briefs’ summaries to gather insights into how appellate practitioners write them. It’s a helpful article in understanding a practitioner approach to the summary of the argument, and it’s rich in examples.
For moot court, I believe scorers are looking for the same thing that a judge would be. Does the summary of the argument give a persuasive overview of the case? Here’s an example of summary of the argument scoring criteria from a competition I have scored before:
SUMMARY OF ARGUMENT:
Is it a succinct, clear, accurate statement of the argument?
Is it persuasively written?
Is it more than a restatement of the point headings?
(10 points possible)
TOP TIPS FOR THE SUMMARY OF ARGUMENT
1. Include your theme in the first sentence or two of the summary. If I get to the end of the first paragraph and I don’t know your position, that’s a problem.
Here is a great example from Judith Fischer’s article mentioned above comparing the first sentences of petitioner and respondent summaries of argument:
Eminent domain was the legal subject in Kelo v. City of New London, where the petitioners opposed a local government’s taking of private property for use by a commercial entity. Their summary of the argument opened with an appeal to Americans’ emotional attachment to their homes: “To Petitioners, like most Americans, their homes are their castles.” The brevity of this sentence intensifies its impact.
The respondents’ summary evoked logic rather than emotion: “At the heart of this case are a series of decisions made by the Connecticut legislature and the elected officials of the City of New London as to what will best serve the economic, social, structural and environmental interests of New London's citizens.”
These sentences primed the Court for two contrasting approaches to the case. The petitioners tapped into deep-seated feelings about homes. By contrast, the respondents relied on legal principles, telling a “‘justice’ story” to argue that the city’s decision was correct despite an outcome displeasing to some.
In Kelo, the justice story prevailed when the Court approved the city’s exercise of eminent domain.
2. Keep it under about 10% of the length of the actual argument. It should be a true summary, not a full recap. Too long, and you risk losing the opportunity to give a good overview to your reader; too short, and it may not be enough to be helpful.
3. Limit citations. It will bog down the summary.
4. Don’t just restate the point headings. It’s lazy and just taking up space.
5. Make sure to leave yourself enough time to give thought to your summary of the argument once you are done with the argument.
Just like authors and editors spend significant time on the back of the book to grab readers’ attention, you should be persuading from the beginning of your brief by having a strong, concise summary of argument.