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U.S. Supreme Court Brief Writing Style Guide: Part 3

In previous NAGTRI Journal editions, I discussed general issues concerning Supreme Court style and what the prefatory parts of the brief should look like. In this issue, which concludes my series on U.S. Supreme Court brief writing style, I will discuss the heart of the brief — the Introduction, the Statement of the Case, and the Argument. I will also spend a few moments on the Conclusion and Appendices. 

Topic 1: Introduction

Many briefs filed in the Court, at both the cert-stage and merits-stage, begin with an introduction. Although the U.S. Solicitor General’s Office does not use them, most of the leading Supreme Court practitioners do. The typical approach is to have a formal section, called Introduction, that appears before the prefatory sections.1 Another common approach is to open the Statement of the Case with a few paragraphs that serve as a de facto introduction.2

A caution: Many briefs have an Introduction, a Summary of Argument, and an opening to the Argument that serves as another overview of the party’s position. The challenge is ensuring that these sections don’t get redundant. Toward that end, avoid having the Introduction read like a Summary of Argument, walking through the various arguments the brief will make, one at a time, in order. An effective Introduction is more thematic than that, presenting the big-picture sense of why your position is correct. (I recently heard a leading advocate refer to the Introduction as “an essay.”)

Topic 2: Statement of the Case

Because this is a style guide, not a manual on how to write effective appellate briefs, my focus will be on how this section should look — not on the various techniques for making the Statement as effective as possible. Still, many of my style pointers help accomplish the core goal of the Statement, which is to set out the relevant facts and procedural history (and, in some cases, statutory background) in an accurate, non-argumentative way that nonetheless subtly shows why your legal position is correct.

Title

Most practitioners call this section the “Statement of the Case.” The U.S. Solicitor General calls it “Statement.” Either title is fine. The key is that, in contrast to many lower courts (especially state courts), this section encompasses both the background facts and procedure.

Structure

  • Most Statements have at least two subsections, one providing the factual background, one providing the procedural background. For example, in a case about excessive-force claims brought by pretrial detainees (Kingsley v. Hendrickson, 576 U.S. ___ (2015)), petitioner’s Statement was simply:

STATEMENT OF THE CASE

  1. Factual Background
  2. Proceedings Below

  • Another technique is to have the Statement’s headings tell a bit of a story. In a case about the meaning of the Prison Litigation Reform Act’s three-strikes provision (Coleman v. Tollefson, 575 U.S. ___ (2015)), Michigan’s Statement looked like this:

STATEMENT OF THE CASE

  1. The history of in forma pauperis status
  2. Coleman incurs three dismissals
  3. Coleman brings four more actions after his third action was dismissed but while it is pending on appeal
  4. The district-court decisions
  5. The Sixth Circuit’s decision

  • When the principal issue in a case is the meaning of a specific statute, Statements usually include a subsection that discusses the statute’s background and lays out its core provisions. For example, in Universal Health Services, Inc. v. United States ex rel. Escobar, 579 U.S. ___ (2016), a case involving how the False Claims Act interacts with Medicaid requirements, the Statement’s subsections were:

STATEMENT OF THE CASE 

  1. Background And Purpose Of The FCA
  2. MassHealth’s Provider Regulations For Mental Health Centers
  3. Factual Background
  4. Proceedings Below

  • A simple case’s Statement may not need any subsections. Even in those cases, however, the Statement should separate the discussion of the facts from the discussion of the district court decision from the discussion of the appellate court decision. Supreme Court briefs typically accomplish that by placing a number at the start of the first paragraph of each new component of the Statement. Thus, for example, the first paragraph describing the facts opens with the number 1; the first paragraph describing the district court decision opens with the number 2; and the first paragraph describing the court of appeals decision opens with the number 3.3

Lawyers who don’t practice before the U.S. Supreme Court often find that practice an odd one. Trust me: The Justices are used to that style and like it. The U.S. Solicitor General’s Office, which is the gold standard of U.S. Supreme Court practice, uses that style in every one of its briefs. Indeed, that office — and other leading practitioners — insert numbers before some paragraphs throughout their briefs, not just in the Statement.

Note that I say “some paragraphs.” The Statement should not look like a Complaint, with each and every paragraph numbered. Only those paragraphs that transition to a new topic should begin with a number.

Other Style Pointers

  • When setting out the facts, include supporting citations. (A citation does not have to appear after every sentence describing facts; but, at the least, every paragraph in the factual background section should have a citation.) Sometimes, those citations can be to a lower court’s opinion in the case. Those are the easiest — just cite the appropriate page in the cert petition appendix. And if it’s a merits brief, cite to the Joint Appendix (e.g., JA 211) where possible.

When no lower court opinion supports a factual assertion, a cert-stage brief must cite something in the lower court record. Try to make such citations as short and simple as possible. For example, cite to the court of appeals’ record (abbreviated as “R. __”) or joint appendix (“CA JA”). Cites to a trial transcript can be “Tr. __”; and so on. Your goal is to make the brief easy on the reader’s eyes, not weighed down with long descriptions of lower court documents.

  • As a general rule, the story of the case — the facts and then the case’s trip through the courts — should be told in chronological order. Most importantly, that means it is the very rare case where you will want to summarize the facts by walking through the testimony of specific witnesses.
  • A prior issue in this series noted that Supreme Court briefs should limit the number and length of block quotes. Statements of the Case present special risks on that score. I have seen many Statements that set out the facts by inserting a multi-page block quote of a lower court’s description of the facts. Please, please, please don’t do that. Occasional quoted language is fine; long block quotes of that sort are not.
  • The “story” the Statement tells culminates with the decision by the federal court of appeals or state appellate court. Your Statement should therefore end with a summary of that court’s reasoning (and a summary of the dissent, if any). Different cases warrant summaries of different lengths. I have seen effective two-paragraph summaries and effective four-page summaries. But it is almost never a good idea simply to say, “the [State] Supreme Court affirmed,” and then leave it to the Argument (or Reasons) section to lay out that court’s reasoning.

Topic 3: The Argument 

A. Cert Petitions

I have already published a guide on cert petitions and briefs in opposition — Preparing Cert Petitions and Oppositions (NAGTRI 2008)4 — which I do not wish to duplicate here. My present focus is on style, not broader strategic and tactical issues such as what arguments are most likely to convince the Court to grant certiorari and how to raise “vehicle” problems with the other side’s petition. Here are a few suggestions that fall into the “style” camp.

  • The argument section of a cert petition is called the “Reasons for Granting the Writ” or the “Reasons for Granting the Petition.” Because the Court is deciding whether or not to grant the petition, the latter title is technically correct. But the former title is commonly used as well. As far as I can tell, the Court is fine with either.
  • The Reasons section usually has subsections that address the different grounds for granting certiorari, such as:

Reasons for Granting the Petition

I. State Supreme Courts are divided on the question presented.
II. The case presents an issue of national importance.
III. The [State] Supreme Court’s decision is incorrect.5

What you don’t want to do, but I’ve seen done on occasion, is insert the heading “Argument” between Reasons for Granting the Petition and § I; or insert a long heading between them that tries to summarize the entire case, e.g.:

Reasons for Granting the Petition

The Court should grant certiorari to address whether the Fourth Amendment is violated when a police officer searches digital information on a cell phone incident to arrest because the lower courts are deeply divided on the issue, the issue arises frequently and is critical to law enforcement, and the court of appeals decided it incorrectly.

I. The federal courts of appeals are divided on the question presented.
II. The case presents an issue of national importance.
III. The court of appeals decision is incorrect.

And it is rarely a good idea to have one long heading of the sort set out just above in place of the more precise subsections.

B. Merits Briefs

There isn’t much to add to at this point. Most of the “General Rule[s]” and “U.S. Supreme Court-Specific Styles” discussed in Part 2 of this series apply to the Argument section of a merits brief. And various other suggestions, such as my prior discussion of section headings, do as well. To all of that, I’ll add just a few further thoughts.

  • Sections traditionally are numbered I, II, III, etc. or A, B, and C, etc. Reserve Arabic numbers (1, 2, 3, etc.) for subsections.
  • Very few Arguments should have more than three main sections. When you see a brief with §§ I through VII, it probably isn’t well written.
  • I stated previously that a heading in the Argument section should not be a word or phrase, such as “Introduction” or “Background.” So what do you do if you believe the argument will be most effective if it first describes the legal background (e.g., the general Fourth Amendment rules that are then applied)?

A common solution is to set out that background under a heading that states a helpful legal principle. For example, in Utah v. Strieff, 579 U.S. ___ (2016), the first subsection in Utah’s opening merits was titled: “Because the exclusionary rule exists only to compel respect for constitutional rights, it applies only when it appreciably deters future police misconduct.” That nicely captured the background Fourth Amendment rule the section was describing; and captured it in a way that advanced the state’s core argument — that the exclusionary rule should not apply in the context at issue because that would not “appreciably deter[] future police misconduct.” Likewise, in Gobeille v. Liberty Mutual Insurance Co., 577 U.S. ___ (2016), an ERISA preemption case, Vermont described the Court’s key ERISA preemption cases in an opening subsection titled, “ERISA does not preempt generally applicable state health care regulations that neither mandate particular employee benefits nor interfere with plan administration.” 

Another approach is to summarize the background law in the opening paragraph (or two or three) of the Argument or its opening section. Oklahoma did this in its merits brief in Glossip v. Gross, 576 U.S. ___ (2015), which addressed whether its use of the drug midazolam in its three-drug lethal injection protocol violated the Eighth Amendment. Oklahoma’s merits argument began with a section titled, “Oklahoma’s Use of Midazolam Does Not Create a ‘Substantial Risk Of Serious Harm’ to Petitioners.” Its first two paragraphs described the general Eighth Amendment test the Court established in Baze v. Rees, 553 U.S. 35 (2008), for assessing challenges of that sort. The rest of the section showed why the state’s protocol passed that test.

Topic 4: Conclusion 

The Conclusion in a Supreme Court brief should do no more than state the relief being sought. That can usually be done in one sentence: “The petition for a writ of certiorari should be granted”; “The judgment of the [State] Supreme Court should be reversed.” If you want to add “For the foregoing reasons, . . .,” that’s fine.

The key is that the Conclusion is not the place for a closing peroration, a dramatic summation of your position. The U.S. Supreme Court does not want or expect that. If you really think it’s necessary to make a closing statement of some sort, you should do so at the very end of the Argument itself, in a paragraph separated from the end of the Argument’s final subsection by asterisks. The plaintiff states’ brief in the Affordable Care Act case did this effectively. At the end of the final section of the Argument, which argued that the individual mandate is not a valid exercise of Congress’s tax power, the brief added the following closing statement:

* * *

In the end, the federal government’s tax power argument suffers from the very same failing as every other constitutional argument that it advances in defense of the ACA. Congress may not “break down all constitutional limitation [on its] powers ... and completely wipe out the sovereignty of the states” by invoking its tax power to enforce commands that it lacks the authority to impose. Bailey, 259 U.S. at 38. The federal government implicitly recognizes as much when it acknowledges that the Court would have to read the individual mandate out of section 5000A to uphold the statute under the tax power. Govt.’s Br. 60-62. That the federal government’s tax power argument would require this Court to effectively ignore what Congress itself described as an “essential” piece of the Act, ACA § 1501(a)(2)(I), is reason enough to reject it. The statute the federal government defends under the tax power is not the statute that Congress enacted. In that statute, the penalty provision is merely the tail and the mandate is the proverbial dog, not vice-versa. And that statute imposes a command that is unprecedented and invokes a power that is both unbounded and not included among the limited and enumerated powers granted to Congress. It is therefore unconstitutional, no matter what power the federal government purports to invoke.

Topic 5: Appendices 

A. Cert Petitions

Supreme Court Rule 14.1(i) lists what materials must be included in the appendix to a cert petition and in what order. Most notably, the petition appendix (colloquially known as the “Pet. App.”) should include the lower court opinions and the relevant statutory provisions, if the latter do not appear in the Constitutional and Statutory Provisions Involved section. A few additional thoughts on the Pet. App.:

  • Most petitions do not include any of the lower court record. Petitions are supposed to present clean legal issues already addressed by the lower courts. They therefore should not need to rely heavily on additional record materials. Indeed, the Supreme Court does not usually even obtain the record until after it grants certiorari. (Only a few times each Term does the Court ask the lower court to send over the record while the Court is still assessing whether to grant certiorari.)
  • In some cases, however, a particular part of the record is critical — either to the merits (e.g., the transcript of the interrogation at which the defendant’s Miranda rights were allegedly violated) or to establishing jurisdiction (e.g., to show that the federal issue was raised below). You should include that part of the record in the Pet. App. when that’s the case.
  • For roughly the same reasons — to help show that the lower court was correct on the merits or that the federal issue was not raised below — a brief in opposition may wish to provide critical portions of the record in its own appendix. This should be done sparingly; but it can be very helpful in a small percentage of cases. 
  • Sometimes, the lower court decision for which review is sought is very short and lacks analysis because it relied almost entirely on a prior decision in which that court addressed the legal issue at length. You will usually want to include that prior decision in the Pet. App.

B. Merits Briefs

Once you’re at the merits stage, the role of an appendix attached to your brief changes. The separate Joint Appendix should contain any pleadings and other record material the Court needs to assess the case. And the lower court opinions already appear in the cert petition appendix and do not need to be reprinted anywhere else. So is there any need for an appendix to a merits brief? 

The answer is yes. Although the relevant statutes and regulations should already appear in the cert petition or its appendix, it is common to include them again in an appendix to the Brief for Petitioner [or Respondent]. The goal is to make things as easy as possible for a Justice (or clerk) reading your brief. In a statutory construction case, the reader will often want to study different provisions as she moves through the brief. You make it easier for her by including the relevant provisions in an appendix. Merits briefs from the U.S. Solicitor General’s Office almost always include such an appendix.

You may also want to include in a merits-brief appendix record material that is critical to the case. If, for example, the question presented asks whether particular jury instructions were constitutional or consistent with a federal statute, you may wish to include the jury instructions in an appendix to your opening merits brief. Again, that serves your core goal — making it easier for the Justices to read your brief and understand your argument. Other cases may warrant including portions of the trial transcript, the lab report of a DNA technician, and so on.

That said, don’t overdo it. Not every case calls for a merits-brief appendix. (Fourth Amendment cases typically do not.) And when you provide one, include only the most important materials.

* * * * *

With the entire brief, including appendices, covered, this style guide will now conclude. As always, if you have any questions about Supreme Court practice — style or otherwise — please never hesitate to contact me.

Endnotes

1 A good example appears at page 1 of this brief: http://www.scotusblog.com/wp-content/uploads/2015/09/14-1175-ts.pdf

2 A good example appears at page 3 of this brief: http://www.scotusblog.com/wp-content/uploads/2016/02/14-1468_pet.authcheckdam.pdf

3 A good example appears in Utah’s merits brief in Utah v. Strieff, 579 U.S. ___ (2016). See http://www.scotusblog.com/wp-content/uploads/2015/12/14-1373-ts.pdf

4 The guide is available on NAGTRI’s web site

5 As my guide explains, a cert petition should begin by describing the conflict among the state high courts and/or federal courts of appeals. With a few exceptions (such as AEDPA cases where the state is seeking a summary reversal), any argument that the lower court erred should be saved for the final section of the petition.

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