Drafting the Argumentative Headings

Drafting the Argumentative Headings Pages 262 – 266 and pages 348-354 in The Legal Writing Handbook

Format • You the numbering systems and typefaces that are typically used in briefs to your court. • I. ALL CAPS • A. Regular typeface • 1. Regular typeface • Never have just one subheading or one sub-subheading. (You need at least two)

Format • Each heading should be a complete sentence. • Make positive assertions. • Do not ask questions.

Use headings to define the structure of your argument • Just as post and beams define the form of a building, argumentative headings define the form of the argument. When drafted properly, they provide the judge with an outline of the argument. • Look at the table of contents in the sample briefs.

2. Use your headings to persuade. • In addition to using argumentative headings to define the structure of your argument, use them to persuade. • Begin your heading by setting out a positive assertion. For example, if you want the court to grant your motion to suppress, make that assertion: “The court should grant the motion to suppress . . . .” In contrast, if you want the court to deny the motion to suppress, make that assertion: “The court should deny the motion to suppress . . . .”

Effective • The court should deny the motion to suppress. . .. • The court should admit Martinez’s show-up identification. . ..

After setting out your assertion, set out the facts or reasons that support your assertion. The most common format is as follows: • Assertion because reasons.

Subheading from Petitioners’ Brief Assertion because support Tariq Mahoney is unable because he lacks free to litigate his own cause access to the of action court

Rewrite the following heading setting out the assertion and then the reasons • From Respondents’ brief: • TARIQ MAHONEY, A GERMAN CITIZEN WORKING AGAINST THE UNITED STATES IN A FOREIGN COUNTRY DURING THE WAR ON TERRORISM, DOES NOT HAVE STANDING TO PETITION FOR A WRIT OF HABEAS CORPUS. • Hint? What facts do you want to put in the position of emphasis?

Possible rewrite: • TARIQ MAHONEY DOES NOT HAVE STANDING BECAUSE HE IS A GERMAN CITIZEN WORKING AGAINST THE UNITED STATES IN A FOREIGN COUNTRY DURING THE WAR ON TERRORISM.

There are, however, other formats that work well. For example, sometimes you will set out the assertion in the main heading and the reasons or support in the subheadings.

Other ways to construct headings - rewrite the sample below. • Roger Mahoney has standing to petition for a writ of habeas corpus as “next friend” on behalf of his son, Tariq Mahoney. • Tariq Mahoney is unable to litigate his own cause of action because he lacks free access to the court. • Roger Mahoney represents the best interest of his son, Tariq Mahoney.

Possible rewrite • Roger Mahoney has standing to petition for a writ of habeas corpus on behalf of his son because his son cannot petition the court on his own behalf and because Roger Mahoney is dedicated to protecting his son’s best interests. A. Tariq Mahoney cannot petition the court on his own behalf because he does not have free access to the court. B. ????

Make your headings readable • If the judge does not read your headings, your headings do not serve either of their functions. They do not provide the judge with an outline of your argument, and they do not persuade. • Thus, to make sure that your headings get read, keep them short and make them easy to read. • As a general rule, your headings should be no more than three typed lines.

Judges do not like to be told they must do something, even when the controlling law is clear. • You might want to say “should” or avoid the problem by using passive voice.

Drafting the Argumentative Headings