Saturday, November 20, 2021
Our Federal Rules of Appellate Procedure require a brief’s Summary of Argument to “contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, . . . which must not merely repeat the argument headings.” Fed. R. App. P. 28(a)(7). As a judicial clerk, I saw brief after brief where the authors ignored this rule. Far too many attorneys essentially listed their point headings in sentence form, leaving the court with the impression counsel realized just before filing that they needed to add some sort of Summary of Argument.
Counsel who ignore the Summary of Argument lose a great opportunity to persuade busy judges, who might otherwise only skim the brief, and to set the tone for the entire case. The Summary gives an attorney the chance to introduce, persuasively, and to expressly set out the theory of the case. Moreover, using an interest-creating “hook” or very direct statement of the argument’s overall main points can also set the stage for later oral argument. Additionally, in large litigation, the Summaries of Argument might be the only thing many stakeholders read.
Recently, I read a fantastic Summary of Argument which really proves these points. In the pending Supreme Court cases on the Texas and Mississippi abortion bans, the Court received a record number of amicus briefs. As NPR reported, as of mid-September, the Court had an astonishing number--over 1,125--friend-of-the-Court briefs in the Mississippi case, Dobbs v. Jackson Women’s Health Org. See https://www.npr.org/2021/09/20/1038972266/supreme-court-date-roe-wade-dobbs-jackson-womens; see generally https://www.law.com/nationallawjournal/2021/05/24/avalanche-of-amicus-briefs-will-hit-justices-in-new-abortion-rights-case/?slreturn=20211020144237.
You can find the briefs in Dobbs at SCOTUSblog here: https://www.scotusblog.com/case-files/cases/whole-womans-health-v-jackson/. But how do you choose which briefs to read? I wanted to read a selection of amicus briefs from multiple sides of the issues, but I did not want to read 1,125 briefs. In selecting briefs to give my attention, I scanned the names of the authors, and then I read the Summaries of Argument from groups who intrigued me. One brief, filed by The Lawyers’ Committee for Civil Rights Under Law and seventeen other civil rights organizations, has a beautiful Summary of Argument that persuaded me to download and read the entire amicus brief.
The Lawyers’ Committee brief uses a strong statement of its overall argument on stare decisis to hook in the reader, beginning: “Because Mississippi H.B. 1510 . . . bans abortions beginning at 15 weeks’ gestation, it directly conflicts with this Court’s unambiguous precedent that pre-viability abortion bans are unconstitutional.” See https://www.supremecourt.gov/DocketPDF/19/19-1392/193123/20210921090114082_19-1392bsacLawyersCommitteeForCivilRightsUnderLaw1.pdf. Then, the brief sets up its argument there is no reason to ignore stare decisis here, stating, “[p]etitioners acknowledge this conflict by requesting that this Court overrule these landmark cases, which pregnant people have now relied upon for almost half a century.” Id. at 2. Next, the Summary of Argument gives a nice explanation of the analysis the Court should use to “take the extraordinary step of rejecting stare decisis,” noting “this Court must determine, among other things, whether a “special justification” exists” by examining the “legitimate expectations of those who have reasonably relied” on the precedent and the “real-world effects on the citizenry.” Id. at 2-3.
Thus, in just a few sentences, the Lawyers’ Committee brief states its position clearly and encourages the reader to continue. The entire Summary is only seven short paragraphs, and follows the approach of stating the Lawyers’ Committee’s conclusions directly, and then giving compelling, but brief, points supporting each conclusion.
In a field of more than 1,125 briefs, the Lawyers’ Committee helped its amicus brief stand out with a short, persuasive Summary of Argument which perfectly followed the Court’s rules and masterfully engaged the reader. The next time you draft a Summary of Argument, you might want to follow this wonderful example.