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Amy BittermanRutgers University School of Law - Newark123 Washington Street Newark NJPhone: 973 353 3059

Email: amy7833@aol.com

IN THE BEGINNING: THE ART OF CRAFTINGPRELIMINARY STATEMENTS

INTRODUCTION

To paraphrase Jane Austen, it is "a truth universally acknowledged" that the beginning

and end of any piece of writing make the greatest impression on readers.1  Thus, the Preliminary

Statement

2

 of a brief is a critical opportunity to shape the way a judge responds to the issues.

3

  If

the opening is nothing more than a statement setting out the parties, the nature of the claim and

the procedural history, that opportunity is lost.4  Given the importance of "first impressions" in

any form of writing and the heavy workload of most judges5, the neutral introduction is not an

1 JANE AUSTEN, PRIDE AND PREJUDICE 5 (The Heritage Press 1940). See also Steven J. Johansen, Coming Attractions: An Essay on Movie Trailers & Preliminary Statements, 10 LEGAL COMMC’N & RHETORIC:

JALWD 41, 43 (2013); Kathryn M. Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader , 89 OR. L. REV. 305, 307 (2010) (noting that the “lead parts of the brief –  theearly sections, the lead paragraphs and sentences and the headings  –  are critical persuasion points.”); Douglas F.Broder, Persuasive Brief Writing in Antitrust Cases: How to Win the Paper War , ABA SECTION OF LITIG. J. 1, 6(2008) (contending that the opening statement is a “critical component of the brief”).  2 As this article focuses solely on Preliminary Statements for trial briefs, the terms “Preliminary Statement: and“introduction” are used interchangeably. Generally, Preliminary Statements in a trial brief combine an introduction

to the case with a summary of the key legal arguments. NOAH A. MESSING, THE ART OF ADVOCACY 194-95(Wolters Kluwer 2013).3 MESSING, supra note 2, at 193. See also Mark J. Moretti, Preparing a Motion for Summary Judgment , THEDAILY RECORD OF ROCHESTER, March 31, 2009 (commenting that a good Preliminary Statement “makes the

 judge want to decide the case your way on an instinctual level”). 4SeeStanchi, supra note 1, at 335 (nothing that”[t]oo often, lawyers waste” the first paragraph of the Statement of

Facts “by using it to lay out a dry recitation of the background facts in a case”); Phillip J. Katauskas, Good Beginnings, Good Endings, 29 PA. LAWYER 41, 42 (2007) (arguing that, at a minimum, the introduction to a briefshould offer the reader a preview of what arguments the parties will advance).5As one writer recently noted, “[j]udges read a lot. A whole lot.” Benjamin R. Opipari, What Attorneys Cam Learn

 from Children’s Literature, and Other Lessons in Style, 17 PERSPECTIVES: TEACHING LEGAL RESEARCH &WRITING 135, 141 (2009). Thus, any technique that makes an advocate’s key points easier to follow is likely to be

viewed as helpful to the court. SeeKatauskas, supra note 4, at 42 (nothing that judges typically have dozens of caseson their dockets and “numerous motions pending”); Douglas Abrams, What Great Writers Can Teach Lawyers and

 Judges: Wisdom from Plato to Mark Twain to Stephen King (Part I), PRECEDENT 16, 17 (2010) (reporting that“judicial dockets have increased faster than population growth for most of the past generations or so”).  

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effective way to open a brief.6 Inter alia, it launches the reader into the facts of a case without any

legal framework or context that would help him/her evaluate those facts.7  Consequently, more

and more practitioners are using the opening statement to frame the dispute in a way that will

engender empathy for the client. 8 

This article argues that the Preliminary Statement is a crucial part of a brief as it

establishes both the narrative theme and legal theory of the case. Examples from briefs and

 judicial opinions will show how to concisely highlight the strengths of a client's case and low

light its weaknesses. Using the analogy of a one minute presentation to a literary agent, the

article will also discuss how to integrate logos, pathos and ethos into a short document.

"PITCHING" A CLIENT'S CASE

Ideally, the opening of a brief should function as the equivalent of a short, one or two

minute pitch to a book agent.9  As noted by two prominent literary agents in an article in

"Publishing Perspectives", a successful pitch for a novel must be brief; thus, every word

counts.10  An effective pitch provides an overview of the story and presents the protagonist in a

6Katauskas, supra note 4, at 43 (citing Magistrate Judge Jeffrey Cole of the Northern District of Illinois for the proposition that a Preliminary Statement with an overview of the case “is a wonderful device to educate the judge”).

See also Johansen, supra note 1, at 42 (commenting that “a well-written Preliminary Statement can establish a themethat takes the critical first step of creating a positive frame of the legal dispute”); Stanchi,  supra note 1, at 335(noting that “priming studies unequivocally show that the behavior that is singled out for [the first paragraph of a

 brief] and the word used to describe behavior, contribute to the formation of an impression that will then be thefoundation for the decision maker’s memory of the events and people involved in the case”).  7Katauskas, supra note 4, at 43 (contending that, absent a summary of the key arguments at the beginning of a brief,the writer throws “the judge or law clerk right into the swamp of facts,” thereby taking the risk of alienating the

reader). See also Christine D. Petruzzell, Brief Thoughts on Effective Brief Writing , N.J. LAWYER 10, 10 (2009)(noting the importance of providing an overview of the case at the start of a brief; MESSING, supra note 2, at 201

(stating that one reason “Introductions are so vital [is that] they appear  before the facts, which can seem labyrinthinewithout an overview of the case”). 8See MESSING, supra note 2, at 193; RUTH ANNE ROBBINS ET AL., YOUR CLIENT’S STORY:PERSUASIVE LEGAL WRITING 251-59 (Wolters Kluwer 2013).9 Preliminary Statements have also been compared to movie trailers. Johansen, supra note 1 (noting that, like amovie trailer, Preliminary Statement has to convey the context of the story and introduce the main characters in avery short space of time).10  David Henry Sterry, Pitchapalooza 2010: Tips for Perfecting Your Book Pitch, PUBLISHING PERSPECTIVES(Nov. 16, 2010), http://publishingperspectives.com/2010/11/pitchapalooza-2010-tips-for-perfecting-your-book- pitch/.

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way that makes the reader lean toward that character's perspective.11  While not entirely

analogous to presenting a client's case, a number of the principles of a good book pitch apply to a

successful Preliminary Statement, including identifying the protagonist's/client's goals and

struggles up front, using specific images/facts instead of relying on general statements, and

maintaining authorial credibility by avoiding overstatement.12  Thus, as with an effective book

 pitch, a good Preliminary Statement introduces the main characters, the central conflict between

them and the themes that will run through the book and frame that story.13 

At a purely mechanical level, one key to an effective Preliminary Statement is an

appropriate length. Like the two minute movie trailer or the one minute book pitch, the

introduction must be short and should leave its audience wanting to know more.14  If a

Preliminary Statement goes on for too long or is bogged down by detail, the reader is likely to

lose patience and overlook the key points the writer is trying to make. In his book, The Art of

 Advocacy, Noah Messing likened the opening of brief to a social introduction, noting that: "if

you want to meet someone at a party, you'll be grateful if a mutual friend tells you the person's

name and shares a few choice details to spark conversation. But if the same friend blabs for

fifteen minutes, you'll crave silence long before he finishes talking."15  Thus, the Preliminary

Statement should be no more "than two percent of the total brief." 16  As with any format

question, practitioners should always check a jurisdiction's court rules for any limitations on

introductions; New Jersey, for example, restricts the length of Preliminary Statements.17 

11 MESSING, supra note 2, at 193.12Sterry, supra note 10.13Sterry, supra note 10.14Johansen , supra note 1, at 42. See also Stanchi, supra note 1, at 306 (noting that “a person’s response to laterinformation is influenced by exposure to prior information”).  15 MESSING, supra note 2, at 193.16 Johansen, supra note 1, at 63.17 N.J. R. APP. PRACTICE 2:6-2(a)(6) (2006).

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  Returning to the book pitch example, when I attended a "Pitchapalooza" event held a few

years ago in which approximately twenty writers had a minute each to "sell" their ideas to a

 panel of agents, I noticed eyes glazing over when a presentation veered away from the dilemma

of the central protagonist to sub-plots or minor characters.18  Similarly, a Preliminary Statement

should be limited to a central theme, namely why justice and equity require that your client

 prevail. Thus, the writer needs to focus on the key facts that will lead the court to see an issue

from the client's perspective.19 

Another flaw in the book pitches that did not work was the use of jargon or unfamiliar

terms or expressions. By way of example, a story that centers around the treatment of a rare

 psychiatric disease is unlikely to be compelling to an audience of lay people who have never

heard of that particular syndrome. On the other hand, if the author spends too much time

describing the details of the illness, the audience will miss the heart of the story, namely, how the

illness impacts the key characters. Similarly, the Preliminary Statement should not rely on

unfamiliar terms or concepts, but focus instead on how those concepts relate to the advocate's

key legal argument or narrative theme.20 

"Overselling" is another mistake writers must be careful to avoid in both a Preliminary

Statement and a book pitch.21  As one book agent noted, "[c]laiming to have written the next Eat

 Pray Love or Harry Potter only makes the writer look like a deluded amateur."22  Similarly, a

Preliminary Statement that is replete with underscoring, italics or exclamation points is likely to

impact negatively on the author's credibility.23 

18SeeBroder, supra note 1, at 7 (suggesting that a Preliminary Statement should be “under two pages. . . somethingthat quickly and memorably tells the reader why you should win”).19 MESSING, supra note 2, at 194.20See also MESSING, supra note 2, at 193, 195.21See Sterry, supra note 10.22See Sterry, supra note 10.23See Petruzzell, supra note 7, at 12.

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COMPELLING OPENING VERSUS THE NEUTRAL INTRODUCTION

If a writer has been lucky enough to acquire an agent and sell a book, he/she has to

carefully consider how to "pitch" it to the public. Thus, two key parts of a book are the

endpapers summarizing the story and the opening pages. One technique that creative writing

teachers have used is to begin a workshop by reading the first paragraph of a story aloud and

asking students whether they would continue reading the work or put it aside after that short

 passage. While judges do not have the option of "putting aside" a brief, a compelling opening

will affect how they view the rest of the document. 24  As both psychologists and writing experts

have noted, "[o]nce a person has a first impression, all other information about the subject will

 be filtered through that impression."25  Notably, First Impressions was the original title of

Austen's Pride and Prejudice; its heroine, Elizabeth Bennett spends the first half of the book

ignoring warning signs about the treacherous Mr. Wickham, who subsequently seduces her

youngest sister, because she is so reluctant to modify her initial positive impression of him.26 

Consider the differences between the following three sets of openings; in each set, the

first version follows the format of the traditional introduction to a brief, noting the

 parties/characters and the nature of the conflict between them, while the second version sets out

the narrative theme or emotional core of the story:

Sample A:

Version one:

Mr. and Mrs. Bennett have five daughters, none of whom can inherit the family home.

Thus, given the limited economic opportunities afforded middle class women in nineteenth

24 Johansen, supra note 1, at 44.25Johansen, supra note 1, at 44; Stanchi, supra note 1, at 310 (noting that psychological studies have confirmed “theenduring nature of first impressions” and that “reliance on first impressions is a kind of mental shortcut that we take

automatically”). 26 DAVID CECIL, A PORTRAIT OF JANE AUSTEN 160 (Hill & Wang 1979).

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century England, the daughters need to find husbands who can support them. On ___, Mr.

Bingley rented an estate located near the Bennett residence. As Mr. Bingley was a bachelor,

Mrs. Bennett hoped he would marry one of her daughters.

Version two:

It is a truth universally acknowledged, that a single man in possession of a good fortune,must be in want of a wife.

However little known the feelings or views of such a man may be on his first entering aneighbourhood, this truth is so well fixed in the minds of the surrounding families, that he isconsidered as the rightful property of some one or other of their daughters.

"My dear Mr. Bennet," said his lady to him one day, "Have you heard that NetherfieldPark is let at last?"

Mr. Bennet replied that he had not.

"But it is," returned she; "for Mrs. Long has just been here, and she told me all about it."Mr. Bennet made no answer."Do you not want to know who has taken it?" cried his wife impatiently."You want to tell me, and I have no objection to hearing it."This was invitation enough.27 

Sample B:

Version one:

The case of Jarndyce versus Jarndyce has been litigated for decades. This drawn out

lawsuit over an inheritance is symptomatic of a society permeated by greed at every level, from a

noblewoman haunted by an out of wedlock pregnancy to a street urchin who earns his keep as an

errand boy. The lives of these characters are linked through the chancery courts.

Version two:

London. Michaelmas Term lately over, and the Lord Chancellor sitting in Lincoln's InnHall.Implacable November weather. As much mud in the streets as if the waters had but newlyretired from the face of the earth, and it would not be wonderful to meet a Megalosaurus, fortyfeet long or so, waddling like an elephantine lizard up Holborn Hill. Smoke lowering down fromchimney-pots making a soft black drizzle, with flakes of soot in it as big as full-grownsnowflakes-gone into mourning, one might imagine for the death of the sun. Dogs,undistinguishable in mire. Horses, scarcely better; splashed to their very blinkers. Foot passengers, jostling one another's umbrellas in a general infection of ill temper, and losing theirfoot-hold at street-corners, where tens of thousands of other foot passengers have been slipping

27  AUSTEN, supra note 1, at 5.

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and sliding since the day broke (if this day ever broke), adding new deposits to the crust uponcrust of mud, sticking at those points tenaciously to the pavement, and accumulating atcompound interest.28 

Sample C:

Version one:

Paolo and Ricardo are two brothers from a poor family. Although Paolo is younger,

Ricardo suffered brain damage at birth and is the more submissive of the two. The brothers

 become acquainted with a thief and the three boys plan to rob the Church of St. Anthony in

Padua, where relics of the Saint, including his tongue, are kept.

Version two:

"Don't bother taking St. Anthony's relic," Giovanni said. "It's the only bit of tongue theold ladies of Padova get. We don't want to deprive them. We only need the gold and silverobjects. Understand, Ricardo?"

"Don't bother taking the relic," I said over and over so I would remember.He poured another round of grappa. The drink felt warm and smooth as it slid from my

throat to my stomach. I closed my eyes and saw a small sun lighting up my insides. When Ireached for a third glass, my brother, Paolo, moved the bottle to the other side of the table. Thesun in my belly disappeared behind a cloud.29 

Because version one in each of the above samples "tells" the reader about the main

character's emotions in lieu of giving the reader a chance to reach those conclusions on his/her

own through the character's actions or thoughts, the reader does not form a connection to the

story or character.30  Similarly, the neutral tone in each of those samples does not evoke any

visceral reaction to the situations described. In contrast, the second version of sample one sets

forth the theme of the book by establishing the mores of the time and place in which the central

characters live. By noting the proprietary interest of the village in any unmarried male who

28 CHARLES DICKENS, BLEAK HOUSE 17 (New American Library 1964).29Amy Bitterman, Out of the Mouths of Saints, 25 THE CREAM CITY REV. __, 28 (2001).30SeeSterry, supra note 10 (reporting that one of the tips the agents gave for an effective pitch was “[d]on’t tell usit’s funny, make us laugh. Don’t tell us it’s scary, scare us. Don’t tell us it’s lyrical, wow us with your poetry”);

Stanchi, supra note 1, at 343 (stating that “[p]riming also works when subjects read a description  of behavior thatactivates the impressions or adjectives sought to be primed”). 

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arrives, Austen also establishes the comic tone of the novel, leading the reader to expect a happy

ending. She then uses a short exchange of dialogue to set up the key differences between Mr.

and Mrs. Bennett, establishing Mrs. Bennett's keen interest in local gossip and propensity to

interfere in her daughters' lives, as well as Mr. Bennett's indifference to her wishes and

 patronizing attitude toward her. However, instead of giving the reader this information directly,

she relies on key word choices to lead him/her to these determinations. As studies have shown,

readers are more likely to internalize conclusions they have reached through their own efforts

than to accept answers given to them directly.31 

In the excerpt from Bleak House, Dickens primes his readers for tragedy through careful

description, using a cold and dirty cityscape as a metaphor for the ways in which the characters

are emotionally and spiritually bogged down. The imagery of "tens of thousands slipping and

sliding," "adding crust upon crust" amid "implacable" weather foreshadows the unhappy fates of

several of the novel's key characters. Foreshadowing, which has been defined as "the technique

or device whereby some situation or event is hinted at in advance," is a key strategy writers use

for making a cohesive whole out of a potentially unwieldy series of subplots.32  As noted below,

it can also help weave the different strands of a brief together.

Finally, the mini scene laid out in version two of sample three establishes that Paolo is

the dominant brother through his action of taking away Ricardo's glass. The fact that Paolo's

gesture is both protective and patronizing establishes his conflicting feelings toward his brother.

The ambiguity of their relationship is further underscored by the fact that Paolo has no objection

31 Michael Higdon, Something Judicious This Way Comes. . . The Use of Foreshadowing as a Persuasive Device in Judicial Narrative, 44 U. RICH. L. REV. 1213, 1225 (2010) (noting that “when processing messages readers aremore persuaded by conclusions that are implicit rather than explicit, especially when the reader is more involved inthe communication”). 32 Id. at 1216.

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to Ricardo's involvement in a robbery scheme, but feels compelled to limit his exposure to

alcohol.

The three samples illustrate different ways of getting a reader's attention depending on

whether the author chooses to focus on character, plot or style. As shown below, these methods

can also focus a reader's attention on the key aspects of a client's case.33 

USING LITERARY TECHNIQUES IN LEGAL WRITING

The techniques that apply to a strong opening for a story, such as the use of key words

and phrases to foreshadow its ultimate outcome, also work in a legal context as well. 34  Strategic

use of repetition is another crucial aspect of both fiction and brief writing.

35

  In Aspects of the

 Novel, E.M. Forster noted how Proust used certain details, such as a phrase of music that appears

at critical moments in the lives of several of the characters, to link their stories together over the

course of several volumes of text.36  Similarly, repeating important facts and legal concepts

throughout a brief is a way of binding complicated stories and legal criteria; the Preliminary

Statement is where the writer sets this rhythm in motion.37  Arguably, the "judicious" use of

repetition is even more crucial in brief writing given the high volume of reading judges are

required to do on a weekly basis; thus, the writer must take advantage of any tools available to

make the key points of a brief "stick" in the reader's mind.38  As one writer has noted, "if you

fashion substantive introductions and conclusions, your briefs will have three, instead of one,

33See also Johansen, supra note 1 (noting that most trailers fall into one of the following three types, depending onthe technique used to attract the viewer: 1) the genre trailer, which emphasizes the kind of advertised, i.e. romanticcomedy, buddy movie, action movie; 2) the story trailer, which focuses on the specific characters and story of the

film; and 3) the star trailer, which focuses on a well-known actor or director. The genre trailer is analogous to thetechniques used in version two of Samples A and B above, while the story trailer is analogous to version two ofSample C above).34 Higden, supra note 31, at 1216. 35See, e.g., E.M. FORSTER, ASPECTS OF THE NOVEL (Harcourt, Brace & World Inc. 1954); Katauskas, supra note 4, at 45.36 FORSTER, supra note 35, at 165.37Katauskas, supra note 4, at 45.38SeeHigdon, supra note 31, at 1248 (noting that “repetition reaffirms the data on which hypotheses should beground”). 

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argument sections: the introduction, the argument and the conclusion. So, in addition to showing

sympathy for the reader, giving a framework for the facts and the argument sections, and

reminding the reader of your strongest arguments, you've given yourself three opportunities . . .

to make your case."39  Done well, the use of key information throughout the brief, beginning

with the Preliminary Statement, will amount to what Forster referred to as "repetition, plus

variation."40  Thus, a crucial fact introduced in the Preliminary Statement will have a different

meaning when repeated in the full context of the story in the Statement of Facts, and will take on

more weight, yet again, when repeated in the Argument in the light of the applicable legal rules.

Unlike fiction, legal writing must contend with statutory and/or common law rules that

not only profoundly impact the outcome of a client's story, but may be the determinative factor in

that result.41  As precedent is arguably the basis of a continuing story, "without the inclusion of

the necessary precedent, the legal narrative would be incomplete."42  Effective legal writing uses

this requirement as an additional persuasive tool by framing the law and facts in ways that

anticipate and neutralize counter-argument and lead the reader toward the conclusion the client

wants.43 

A judge's decision to emphasize certain words or phrases when describing the legal rule

are often predictive of the outcome of a case.44  For example, in Fisher v. University of Texas,

the majority framed the legal issue as whether or not the lower court held the University to "the

demanding burden of strict scrutiny articulated in Grutter  and Regents of Univ. of Cal. v.

39Katauskas, supra note 4, at 45. 40 FORSTER, supra note 35, at 168. See also JAMES WOOD, HOW FICTION WORKS 191 (Farrar, Straus &Giroux 2008) (noting that, if done right, repetition in writing is “alteration” not “repetition”). 41 Higdon, supra note 31, at 1216 (noting that “for any given legal problem, part of the story must include therelevant law that will ultimately guide the resolution of that particular case”). 42 Higdon, supra note 31, at 1243.43See Higdon, supra note 31, at 1246.44 Higdon, supra note 31, at 1245 (noting that “rule statements present prime opportunities for foreshadowing”).  

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 Bakke".45  By contrast, in her dissent, Justice Ginsburg argued on narrower, more concrete

grounds that, since the University patterned its admissions policy "after the Harvard plan

referenced as exemplary in Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke " . . .

[and] steered clear of a quota system like the one struck down in Bakke," the lower court

correctly determined that the school's admissions policy was constitutional.46  By relying on a

 broader, more abstract definition of the legal question, the majority gave itself leeway to reverse

the lower court's decision.47  Similarly, the factual descriptions of the University's policy in the

majority and dissent opinions indicate where each of those positions are ultimately headed.

Writing for the majority, Justice Kennedy argued that "[t]he University considers race as one of

various factors in its undergraduate admissions process. Race is not itself assigned a numerical

value for each applicant, but the University has committed itself to increasing racial minority

enrollment on campus. It refers to this goal as a 'critical mass.'"48  In contrast, Justice Ginsburg

stated that the University's "admissions policy flexibly considers race only as a 'factor of a factor

of a factor of a factor' in the calculus."49  Citing the school's "factor of a factor" language, Justice

Ginsburg minimizes the role that race plays in the admissions policy, while Justice Kennedy's

"one of various factors" language suggests that race is given equal weight with other

considerations. Thus, both writers "plant clues" early in their opinions that foreshadow "the

conclusion the writer will ultimately be advocating."50 

45 133 S. Ct. 2411, 2413 (2013).46 Id. at 2432-33.47 Id.48 Id. at 2415.49 Id. at 2434.50 Higdon, supra note 31, at 1244.

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  U.S. v. Bannister ,51 a 2011 Eastern District of New York decision, is also illustrative of

the use of an introductory statement to frame the factual and legal issues in ways that both

 predict the ultimate decision and persuade the reader that it was the correct outcome:

Almost filling the jury box were the defendants . . . eleven males, ranging in age fromtwenty-one to forty-nine, ten African American and one Hispanic. Fully occupying the well ofthe court were counsel for the defendants, assistant United States attorneys, agents of the FederalBureau of Investigation, and a phalanx of United states Marshals. Jammed into the gallery weredefendants' anxious mothers, girlfriends, other family members, and friends.

The indictment embraced twenty-three counts, connected by a conspiracy to sell, and theselling of, crack cocaine and heroin in the hallways of, and the streets surrounding, a publichousing project in Brooklyn, between September 2007 and January 2010. Guns were carried.The lives of the residents were made miserable by the attendant depravity and violence. These

were serious crimes.

The unspoken questions permeating the courtroom were: How did these eleven come tothis pass, and what should be done with them if they were convicted - as all of them eventuallywere, by guilty pleas? Some of the unsatisfactory answers in such all-too-frequent urbantragedies are discussed in the memorandum that follows.

The issue of what should be done about these defendants and others like them, is centralto the law's rationale for the heavy mandatory minimum incarceratory sentences being imposedin this case. For a number of the defendants, they are much heavier than are appropriate. One ofour most thoughtful jurists [Justice Anthony Kennedy] reminds us, '[o]ur resources are misspent,our punishments too severe, our sentences too long . . . I can accept neither the necessity nor thewisdom of federal mandatory sentences. In too many cases, mandatory minimum sentences areunwise and unjust.'

As a group, defendants grew up in dysfunctional homes characterized by a combinationof poverty, unemployment, undereducation, crime, addiction to drugs and alcohol, physical andemotional abuse, and the absence of an adult male role model. They attended low-functioning public schools with limited resources to help students with their in- and out-of-schooldifficulties. Most dropped out of school, habitually abused drugs and alcohol from an early age,and found little lawful employment. They became a gang of illegal narcotics distributors, whichturned to guns and violence, contributing to the degradation of their community.

While the defendants are before this court because of the choices they themselves havemade, the limited options available to them are partly the fixed artifacts of history. Their story begins hundreds of years ago with the enslavement of African Americans. It runs throughReconstruction, Jim Crow, northward migration, de jure and de facto segregation, decades ofneglect, and intermittent improvement efforts by government and others.

51 No. 10-CR-0053, 2011 WL 1113591 (E.D.N.Y. Mar. 24, 2011), amended , 786 F. Supp. 2d 617 (E.D.N.Y 2011).

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  Protection of the public requires serious terms of incarceration. But enforcement of theharsh mandatory minimum sentences required by Congress imposes longer terms ofimprisonment than are necessary. Such long years of incarceration and separation from relativesgenerally increase the likelihood of further crime by these defendants and their children.

 Nevertheless, strong efforts will be made by the Bureau of Prisons to help educate thedefendants and provide occupational training. Drug and alcohol treatment will be madeavailable. Upon their release from prison, the court's probation service will provide strict, day-to-day supervision and assist in attempts to obtain essential jobs.52 

 Notably, the introduction is rather lengthy, the first clue that something other than

 precedent was the controlling factor in the decision. The paucity of cited law is another clue that

 policy, rather than legal rules or prior case law, was what swayed the judge's decision in this

instance.

53

  While acknowledging the existence of mandatory sentencing rules, the court

undermines them by attacking their underlying premises; the court argues both that, as evidenced

 by the ethnicity of the defendants, they disproportionately impact minorities, and that, to the

extent such laws are meant to curb crime, they are not only ineffective, but may have the

opposite effect.54  In this way, the introduction foreshadows the court's primary legal contention,

namely that mandatory sentencing laws violate the Equal Protection Clause.55  Interestingly, the

sole citation in the passage is to a speech by Justice Kennedy, who is generally regarded as a

centrist, and, therefore, presumably more credible to a general audience than a more radical

voice.

In addition, the court in Bannister  anticipates some of the possible objections to its

decision and is careful to acknowledge them.56  Because our court system is adversarial, legal

52 Id. at **2-5.53 Higdon, supra note 31, at 1253.54See Bannister at *57. See also Higdon, supra note 31, at 1254 (citing a Supreme Court of Vermont ruling that alesbian couple could “come within the step- parent exception” of a statute that limited such exceptions to married partners, even though the prospective parents could not legally marry at the time the decision was issued; the courtovercame the plain language of the statute by finding that the primary purpose of the state’s adoption statutes was to

“promote the welfare of children and that application of the statutes should implement that purpose”).  Id. 55See Bannister at **121-25.56See Bannister at *90.

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writing has to address and negate an adversary's arguments. Neutralizing an opponent's theses

early on can be a particularly effective persuasive tool.57  Although the Bannister opening

lowlights defendants' misconduct by using the passive voice to describe it, the court notes that

the defendants pled guilty to "serious crimes".58  The court takes pains to address these concerns

 by emphasizing that, in addition to serving jail time, the defendants would receive occupational

training and rehabilitation, and be subject to "strict day-to-day supervision" on release.59By

 providing "refutation preemptions" in the form of alternatives to extended, mandatory sentences,

the court arguably "inoculated" itself against objections that the defendants were "getting off

lightly".

60

 

For purposes of a brief,

[t]he theory of inoculation is based on the idea that advocates can make therecipient of a persuasive message 'resistant' to opposing arguments, much like avaccination makes a patient resistant to disease. In an inoculation message, themessage recipient is exposed to a weakened version of arguments against the persuasive message coupled with appropriate refutation of those opposingarguments. The theory is that introducing a 'small dose' of a message contrary tothe persuader's position makes the message recipient immune to attacks from theopposing side.61 

Thus, there are two components to the inoculation technique.62  First, the writer must establish a

threat of some kind. Second, the writer must follow up the threat with "refutational preemption,"

which is defined as providing readers with "specific arguments they can use to strengthen their

attitudes toward subsequent influence."63  As noted above, the court in Bannister anticipates the

objections to its ruling by conceding that incarceration is necessary to protect the public, while

57 Higdon, supra note 31, at 1237.58See Higdon, supra note 31, at 1256.59See Bannister  at *90. See alsoHigdon, supra note 31, at 1257.60 Higdon, supra note 31, at 1257.61 Kathryn M. Stanchi, Playing with Fire: The Science Confronting Adverse Material in Legal Advocacy, 60RUTGERS L. REV. 381, 399-400 (2008) [hereinafter Playing with Fire].62 Playing with Fire, supra note 61, at 406.63 Higdon, supra note 31, at 1239.

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simultaneously arguing that, in some instances, long term imprisonment may endanger the public

further.64  By predicting, articulating and then answering an opposing argument, the court

simultaneously undermines that argument and bolsters its own reasoning by appearing

objective.65  And while the court's position is clear from the introduction, it is careful not to

overstate its contentions, deliberately refusing to absolve the defendants of all responsibility for

their predicament by acknowledging they were "before the court because of choices they

themselves have made".66  Notably, however, this acknowledgement is included in the

subordinate clause of a sentence and is neutralized by the independent clause that immediately

follows it, which notes the "limited options" available to the defendants.

67

 

DRAFTING THE PRELIMINARY STATEMENT

A. Timing

A number of commentators have opined that the Preliminary Statement should be the last

 part of the brief to be drafted, as the writer "will have a true appreciation of the arguments

ultimately made and their nuances" only after the rest of the paper is completed.68  I would revise

this maxim in one crucial respect; for some writers, particularly law students struggling with

their first experience of writing a brief, the Preliminary Statement should be the first thing

drafted and the last thing edited. Drafting the Preliminary Statement provides an effective

transition from the outlining phase to a first draft by forcing the writer to hone a wide range of

data into a coherent thesis early on. As the noted biographer Stacy Schiff wrote in an article on

her writing process, "[r]eality does not easily give up meaning; it's the [writer's] job to clobber it

64 Bannister  at *4.65 Higdon, supra note 31, at 1240.66 Bannister  at *4.67 Id. 68Petruzzell, supra note 7, at 11; Broder, supra note 1, at 6 (stating that a drafter “cannot write [the PreliminaryStatement] properly until [he/she has] finished drafting [the] fact statement and argument”).  

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into submission. You're meant not only to tame it but to extract substance, to identify cause and

axiomatic effect."69  Similarly, drafting a Preliminary Statement up front is a way for the writer

to recognize the key themes of a case and to create order out of a host of sometimes disparate

facts, a process that Schiff characterized as "rescuing your subject from . . . [the] 'bundle of

accident and incoherence that sits down to breakfast.'".70 

However, as noted above, the focus of a piece often changes during the course of drafting

and revising as the nuances of a story or case slowly reveal themselves. Opening sections,

therefore, are subject to constant revision. In a recent interview, Amy Tan, the author of The Joy

 Luck Club, stated that the beginnings of her novels are in flux until the books are completed, at

which point she goes back to the opening and revises it again.71  Since the Preliminary Statement

functions, in part, as a conclusion, it makes sense that it would be the last section of the brief to

 be edited.72 

B. Priming - Choosing Your Theme

More than just a summary of a client's strongest facts and legal arguments, the

Preliminary Statement is where the writer establishes the theme of the case - "the core point that

lingers in every word on every page."73  Focusing on the theme of the case is particularly

important in the Preliminary Statement because of its placement at the start of the paper.74  Thus,

drafting an effective opening requires the writer to determine what the case is really about and to

choose the best way to introduce that theme to the reader, always keeping in mind the relief

69 Stacy Schiff, The Dual Lives of the Biographer , NEW YORK TIMES SUNDAY REV. 8 (Nov. 25, 2012).70 Id. (quoting Yeats).71 Noah Charney, Amy Tan: How I Write, THE DAILY BEAST (Dec. 11, 2013),http://www.thedailybeast.com/articles/2013/12/11/amy-tan-how-i-write.html.72See Abrams, supra note 5, at 18 (noting that Ernest Hemingway claimed to have rewritten the ending of  A Farewellto Arms thirty-nine times).73 MESSING, supra note 2, at 195. See also Petruzzell, supra note 7, at 11. 74Stanchi, supra note 1, at 312, 314, 332.

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sought.75  Thus, the Preliminary Statement functions as the "lens"through which all subsequent

information in the brief is viewed.76 

Unlike the Introduction section of an appellate brief, the Preliminary Statement for a trial

or motion brief incorporates both an overview of the case and a summary of the key arguments.77 

Returning to our book marketing analogy, the Preliminary Statement functions as both the

opening of a novel and the endpapers that provide a synopsis of the plot. Thus, the opening of a

trial brief has to introduce both the narrative theme and the theory of the case,78 which have been

defined as follows:

the legal theory (or theories) . . . provides the justification of why the courtcan legally rule in your client's favor . . .The theme, on the other hand,refers to the value-based, emotional reason why the court should want torule in your client's favor.79 

When deciding on a theme, the advocate should consider what is most likely to persuade

the court.80  Like most of us, a judge is likely to view information through prior knowledge and

experience; once assigned to a judge, counsel should read everything he/she has written on the

issues in the client's case.81  If the matter is assigned to a judge who has never ruled in favor of a

75SeePetruzzell, supra note 7, at 11; Johansen, supra note 1, at 42 (comparing Preliminary Statements to movietrailers and noting that, since trailers only last a few minutes, “[t]he first decision to make is which storyline of th efilm should be featured in the trailer”).  76 Johansen, supra note 1, at 45 (nothing that a well drafted Preliminary Statement “can prime one’s reader so thatthe reader is more receptive to the details that will follow”).  77 MESSING, supra note 2, at 194.78 MESSING, supra note 2, at 194.79 ROBBINS ET AL., supra note 8, at 122.80 ROBBINS ET AL., supra note 8, at 29 (opining that “[a]sking the judicial audience to merely reinforce theirexisting beliefs is the easiest way to persuade that audience”). 81

Kenneth D. Chestek, Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions , 9LEGAL COMMC’N & RHETORIC 99, 135 (2012) (advising advocates to learn as much as possible about a

 judge’s background and prior rulings to determine “what kinds of stories the judge responds to.”). See also FernandaEberstadt, Outsider Art, N.Y. TIMES BOOK REV. BR1 (March 30, 2014), available athttp://www.nytimes.com/2014/03/30/books/review/the-blazing-world-by-siri-hustvedt.html?_r=0 (noting that“perception is determined by cultural preconceptions.”); Eric R. Kandel, What the Brain Can Tell Us About Art , N.Y. TIMES SUNDAY REV. SR12 (Apr. 14, 2013), availableat http://www.nytimes.com/2013/04/14/opinion/sunday/what-the-brain-can-tell-us-about-art.html?pagewanted=all(opining that viewers bring their “acquired memories” to works of art and “relate the work of art to those

memories”). 

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 plaintiff on due process grounds, consider whether the focus of the Preliminary Statement should

 be a due process argument, even if it's arguably one of the client's strongest legal claims.

Generally, the theme of a brief springs from four possibilities: 1) the client's story line,

2) the law's story line, 3) the lawsuit's story line, or 4) some combination thereof.82  In most

instances, the client's story line predominates; however, there are times when the writer might

want to opt for the law's story line, even if the client has a compelling narrative.83  For example,

if the case is on appeal, the client won below and the key issue is whether the lower court abused

its discretion, the writer might want to focus on the procedural story line as the appellant will

likely have a difficult time overcoming the wide berth given to discretionary determinations of

the trial court.84  There may even be occasions when a writer decides not only to focus on the

legal story, but also to structure his/her theme around the weakest part of that story. For

example, if a client has lost a motion for a temporary restraining order due to a failure to

establish "immediate, irreparable harm,"85 on appeal, counsel might want to start with that issue.

By addressing the potential problem up front, the writer potentially gains credibility with the

court and weakens the opposition's argument by undercutting it from the beginning. 86 

The writer should also consider focusing on the law's story is a case where the client is

not inherently sympathetic. In such cases, counsel might want to make the client "a proxy for an

ideal", such as the importance of honoring the 5th and 6th amendment rights of criminal

82

 ROBBINS ET AL., supra note 8, at 253. The choices are deliberately framed as “stories” since psychologicalstudies have shown that stories are a key way of evoking an emotional response in a subject that will carry forwardinto later judgments and decisions. See also Stanchi, supra note 1, at 310, 315; Chestek, supra note 81, at 99 (notingthat “[h]umans are hard-wired to think in story terms”). 83 ROBBINS ET AL., supra note 8, at 254.84 ROBBINS ET AL., supra note 8, at 254.85See, e.g., Judice’s Sunshine Pontiac Inc. v. Gen. Motors Corp., 418 F. Supp. 1212, 1217-18 (D.N.J. 1976).86 Playing with Fire, supra note 61, at 387, 389 As Professor Stanchi noted, however, deciding when and how toaddress adverse information depends on a number of factors, including whether or not “the advocate has a

competent and effective refutation” available. Id. at 383.

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defendants.87  Another alternative was suggested in a recent article by Professor Linda Edwards,

who noted how advocates can use cultural narratives or "myths" as the theme of a brief.88 

Professor Edwards analyzed how the parties used competing myths to argue the case of Hamdi v.

 Rumsfeld, 542 U.S. 507 (2004), which arose from the extended detention of a U.S. citizen who

was caught during hostilities in Afghanistan and was never formally charged. Professor Edwards

wrote that the "the myth of redemptive violence" was behind the government's contention that

the United States "was under attack by terrorist forces" and could, therefore, keep Hamdi in

detention indeterminately.89 

All of the potential story lines noted above require the storyteller to set out the central

character, his/her "goals and the obstacles between the character and her goals."90  The obstacles

 between the protagonist and his/her goals generate the conflict that drives the narrative.91  If the

focus is on the client's story, then the client is the protagonist; if the focus is on the law's story,

then the legislature or judiciary will be the protagonist, depending on whether the claim arises

from statutory or common law.92  For example, if the claim involves a conflict over the

interpretation of the statute, then the emphasis in the Preliminary Statement might be on the

government's goal in enacting that law and how the wording or the enforcement of the statute

should reflect that stated purpose.93 

In addition to choosing which storyline will control the narrative, the writer

87 Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction WritingTechniques to Write Persuasive Facts Sections, 32 RUTGERS L.J. 459, 473 (2001) [hereinafter Fiction 101].88

Linda Edwards, Where Do the Prophets Stand?, 13 CONN. PUB. INT. L.J. 43, 45 (2013). 89 Id. 90 ROBBINS ET AL., supra note 8, at 252. See also Fiction 101, supra note 87, at 467 (noting that “all storiesrequire three things: Character, Conflict and Resolution”).  91 ROBBINS ET AL., supra note 8, at 252.92 ROBBINS ET AL., supra note 8, at 252.93 ROBBINS ET AL., supra note 8, at 238.

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also has to consider how to frame the conflict at issue. Conflicts in character driven stories have

traditionally been classified as follows:

Man Against Man

Man Against Self

Man Against Nature

Man Against Society/Society Against Man

Man Against Machine/Institution/Leader

Man Against God

God Against Everybody

94

 

Breathing life into one of these paradigms entails introducing to the reader to the

character's personal struggles. In an effective Preliminary Statement, this translates into

"relat[ing] the lawsuit to the client's goals and needs.95  Thus, the theme should flow from the

"most emotionally powerful, memorable facts" of the case.96  By way of example, consider the

following hypothetical involving an antitrust suit between two small companies: Plaintiff began

his career as a mechanical engineer who spent the better part of ten years developing a computer

device; Defendant computer manufacturer has developed a similar, albeit concededly inferior

device. Plaintiff's chief legal argument is that Defendant is "bundling" its device by wrapping it

into sales of its computers. While Plaintiff seeks monetary damages, framing his goal as a

strictly pecuniary one is unlikely to gauge much sympathy for him as he is already wealthy by

94

 Fiction 101, supra note 87, at 469. See also Christopher Rideout, Storytelling, Narrative Rationality and Legal Persuasion, 14 J. LEGAL WRITING INST. 53, 68 (2008) (noting that “[a] story’s reference  to stock stories bearson its persuasiveness. To the extent that a story is congruent with them, stock stories not only lend plausibility to hatstory, but also offer a frame of reference for the story’s significance”). In an article in the Magazine Secti on of theSunday New York Times, Mark Leibovich referred to a number of wealthy politicians as “narratively -challenged”since they are unable to make use of the “rags to riches” stock story. Mark Leibovich,  Did Anyone Wash Dishes in

This Family, N.Y. TIMES MM13 (Apr. 13, 2014), available athttp://www.nytimes.com/2014/04/13/magazine/leibovich-rich-politicians.html.95 Fiction 101, supra note 87, at 471.96Stanchi, supra note 1, at 315.

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most people's standards. However, if Defendant's actions are described in terms of destroying

Plaintiff's long-held dream of introducing his product into the market, a goal he spent many years

laboring toward, at the cost of personal and professional opportunities, Plaintiff's market loss is

more likely to evoke sympathy from a judge or jury. 97 

C. Crafting the Preliminary Statement

The choice of theme will affect every other decision the writer has to make in drafting a

Preliminary Statement, including organization, issue framing and fact selection; ideally, these

other components work together to highlight the theme.98  A strong characterization of the

 parties in a brief's opening gambit can affect the way the reader absorbs all subsequent

information.99  By grouping positive information at the beginning, counsel "can create

 presumptions in the reader's mind [that] will be hard for opposing counsel to overcome."100 By

way of example, an advocate arguing for the return of an object stolen from an archaeological

dig might opt to describe purchasers of stolen artifacts, such as the defendant, as catalysts for the

explosion of looting around the world.101  Since most of the archaeological sites at issue in

cultural repatriation claims are in poor countries, often in the midst of political turmoil, framing

the parties as individual wealth versus economically struggling nation might also serve to push

the reader toward a more forgiving analysis of the plaintiff's procedural problems, such as a

97 Fiction 101, supra note 87, at 471 (describing how in the government’s case against Microsoft, lawyers for the

company defined the conflict as Man/ Bill Gates against Machine/ the U.S. government that “was seeking to crush”him. In turn, the government “pitched the conflict as Man Against Machine –  where the ‘Machine’ was Microsoft,Inc. . . . and ‘Man’ was all the budding computer companies”).  98 Randy Lee, Writing the Statement of the Case: The “Bear Necessities,” 10 WHITTIER L. REV. 619, 623 (1989).Although the article focuses on drafting a Statements of Facts, many of recommendations noted apply to drafting aPreliminary Statement as well.99Stanchi supra note 1, at 310 (nothing that “[i]t is more than a figure of speech to say that readers ‘get a feel’ for thecase from the first of the brief. It is literally true”). 100 Lee, supra note 98, at 620.101Stanchi supra note 1 (pointing out the “metaphoric” quality of the prime).  

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failure to discover the theft at an earlier date.102  Thus, once the writer has settled on his/her

characterization of the parties, repetition of key words or phrases can solidify that initial

impression.103  In the cultural repatriation case sample, emphasis on the defendant purchaser's

wealth might also help undercut the adversary's attempt to paint him/her as a preserver of

objects; this strategy would be all the more effective if the facts revealed instances of self-

indulgent behavior on the part of the defendant, such as evidence that he/she modified the object

or subjected it to questionable cleaning techniques.

In the Bannister introduction quoted above, the writer uses carefully placed details to

engender empathy for the defendants and distance the reader from the prosecution.

104

  The

defendants are introduced by their full names, while the opposition is characterized by

 position.105  Members of the defendants' families are described as "anxious", while the United

States Marshals present are grouped as a "phalanx," a word that derives from the ancient Greek

for a massed, heavily armed infantry.106  By noting that the gallery was "jammed" with

"defendants' anxious mothers, girlfriends, other family members and friends", Judge Weinstein

not only introduces details that help concretize the scene, he foreshadows his later point that

separation of the defendants from their support systems for extended periods of time presents

greater risks than benefits.107 

102Stanchi supra note 1, at 310 (explaining that the Preliminary Statement can function as a prime “for the case awhole” and lead the reader to “see the case in a particular way by pushing the theme of the case and evoking

 particular emotions in the reader”). See also Chestek, supra note 81, at 129 (noting that “[p]ersuasion is like a

double helix: one strand of logos wound tightly with a strand of narrative reasoning. . .the two strands mustcomplement each other in a natural way”). 103Stanchi, supra note 1, at 344.104See Lee, supra note 98, at 626 (noting that “preceding and surrounding facts” color how a reader views the centralevent in the story).105 Bannister at *2-3.106“Phalanx,” MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/phalanx (last visited August 7,2014).107 Bannister  at *2.See also WOOD, supra note 40, at 67 (noting the importance of detail in literary works as ameans of centering the reader’s attention). 

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  The Bannister opening also illustrates how to use a vignette to affect the way a reader

treats subsequent information.108  In lieu of beginning with a procedural history of the case or a

recitation of the underlying charges, the opinion starts by "setting the scene," essentially putting

the reader in the place of someone present as the story unfolds, a common literary device, only

here the scene is a court hearing.109  Then, instead of opting for the "story" that landed the

defendants in court, the court focuses on the "back story" that limited the defendants' choices.110 

By drawing back the timeline to focus on the defendants' impoverished childhoods, the court

shifts the focus from the defendants' misconduct to society's failures, thereby paving the way for

a policy based legal argument.

111

 

The first paragraphs of the opinion not only grab the reader by putting him/her "in the

middle of things," they set up the next section, which begins by posing the "unspoken questions"

of how the defendants "came to this pass and what should be done with them if they were

convicted."112  The court answers its own question by going beyond the "urban tragedies" of the

defendants' histories to the history of the country itself, noting the tragedies of slavery, Jim

Crow, and segregation.113  Similarly, when the court turns to the law at issue, it focuses on the

"back story", emphasizing the legislative history of the Anti-Drug Abuse Act of 1986.114 Inter

alia, the court points out that the law was "passed without many of the formalities that normally

108Stanchi, supra note 1, at 310.109 Bannister  at *2.See, e.g., WILLIAM THACKERY, VANITY FAIR (Penguin 1968), which begins with thefollowing passage: “While the present century was in its teens, and on one sunshiney morning in June, there drove

up to the great iron gate of Miss Pinkerton’s academy for young ladies, on Chiswick Mall, a large family coach, withtwo fat horses in blazing harness, driven by a fat coachman in a three-cornered hate and wit, at the rate of four milesan hour.” 110 Bannister  at **2-5.111 Id. at **4-5.112 Id. at *2.See also Elizabeth Fajans& Mary R. Falk, Untold Stories: Restoring Narrative to Pleading Practice, 15J. LEGAL WRITING INST. 3, 24 (2009) (noting that opening “with a compelling scene is an excellent way to hookthe reader”). 113 Bannister  at *4.114 Id. at *61.

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accompany important legislation" and that materials included in the congressional record

suggested that the law would have a racially disparate impact.115 

C. Combining Theme and Summary of the Argument

As noted above, this article focuses on the opening of a trial or motion brief, which

requires the writer to set out both the overriding theme/themes of the paper and a summary of the

 pertinent law. In short, a Preliminary Statement in a trial or motion brief provides "a judge with

one-stop shopping: the first few pages of the brief provide a sufficient overview to discern what

happened, what the judge should do about it, and how to get there," all within a short space of

time.

116

 

While word choice is an important consideration in every step of brief writing, it is

critical in the Preliminary Statement, both because of its brevity and because those few pages

form the reader's "first impression" of the argument.117  If a brief is analogous to a short story, in

which every word counts, the counterpoint of the Preliminary Statement may be flash fiction, in

which every word must carry not only its own weight, but the weight of the text that didn't make

the cut. Like flash fiction, the Preliminary Statement includes the classic story elements of a

 protagonist, conflicts, obstacles and resolution but, because of its brevity, some of these elements

are only hinted at.118  With so much at stake, neutrally laying out the parties, procedural history

and nature of the conflict is unlikely to be any more effective at grabbing the reader's attention

than the bland descriptions set out in Part I above. Consider the following two openings for a

 brief:

115 Id. at *65.116 MESSING, supra note 2, at 206.117Stanchi, supra note 1, at 343 (noting that “careful word choice is important to the priming effect”).  118 Elizabeth Cohen, Flash Fiction Strives For Big Impact With Few Words, PRESS & SUN BULLETIN 1 (Aug.13, 2000).

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Version One:

The instant appeal stems from a jury trial. At the conclusion of the trial, the jury found

Defendants liable for the use of excessive force against the Plaintiff and awarded damages of

$10,000 for injuries that included a broken jaw and cheekbone. Noting that the award barely

covered medical costs, the trial court found that the jury failed to follow its instructions to

compensate Plaintiff for obvious pain and suffering and granted an additur of $150,000.

Defendants subsequently appealed.

Version Two:

On March 4, 2010, Plaintiff suffered a broken jaw and cheekbone when one of the

Defendant officers kicked him in the head in the course of an arrest. At the time this beating

occurred, Defendant was lying face down on the ground, and another of the Defendants was

holding his hands behind his back to handcuff him. Plaintiff's injuries required surgery lasting

over four hours, during which two metal plates and eight screws were inserted into Plaintiff's

 jawbone. The beating also left him with a permanent loss of sensation. After finding the

Defendants guilty of using excessive force, the jury awarded Plaintiff only $10,000, which barely

covered his medical expenses. Notably, the award ignored the trial court's specific instructions

to compensate Plaintiff for his obvious pain and suffering. As a result, the court granted an

additur of $150,000. Defendants subsequently appealed.

While both versions lay out the parties, conflict and status of the case, the first version

 begins by referencing procedure, which is not a compelling choice as there is no procedural

conflict. The second version focuses from the start on the excessive force and damages claims,

 both of which are in play because the appeal challenged both the jury's finding on liability and

the judge's additur. Even if the appeal challenged only the additur, it would still be worth

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starting with the fact that Plaintiff sustained his injuries after he had already been subdued by the

officers as that information primes the reader to find against the Defendants.119  Given that the

excessive force finding was part of the appeal, this fact also serves to neutralize any rationale the

Defendants might offer for their conduct. The detail that Plaintiff was on the ground, face down

underscores his vulnerability, as his two assailants were both standing, which makes them appear

as deliberate agents of the abuse; thus, defendants' conduct is more likely to trigger an anger

response on the part of the reader given this additional information.120  The use of vivid, physical

detail, such as the metal insertions and the permanent loss of feeling in Plaintiff's face, are also

meant to evoke a visceral response on the part of the reader.

121

  As numerous writers have

acknowledged, detail is crucial to both legal and narrative drafting as they not only "elicit

emotion, create mental pictures and stimulate associations", they help make a story cohere.122  In

legal writing, details also help to foreshadow the legal theory of the case.123 Notably, although

version two makes more of a play toward the reader's emotion, it does so without an "obvious

appeal to the emotions," relying instead on an objective description of some key facts.124 

119See MESSING, supra note 2, at 198 (stating that openings “often work best when they frontload persuasivefacts”). 120See Stanchi, supra note 1, at 322 (noting that anger “is connected to the perception that negative events are predictable and under human control, which results in a tendency to blame people for events”); MESSING,  supra note 2, at 206 (reasoning that the o pening of a brief should motivate a judge “to feel like some wrong has occurredthat [he] must remedy”).121See Stanchi, supra note 1, at 327 (noting that the graphic description of the strip search of a student in a Statement

of Facts “evokes surprise and anger”).  122Fajans & Falk, supra note 112, at 23, 40.123 For example, a description of a child left alone on a cold day in a public park not only creates instant empathy forthat child, it also sets up a legal case for parental neglect.124 ROBBINS ET AL., supra note 8, at 257 (commenting on the importance of “not presenting an overtly biaseddescription” of the clients story, which could undermine the writer’s credibility.). See also Kenneth D. Chestek, The Plot Thickens: The Appellate Brief As A Story, 14 J. LEGAL WRITING INST. 127, 142 (2008) [hereinafter The Plot Thickens] (noting that if the writer is too obvious or heavy handed “the reader will feel manipulated,” while the

more “skillful writer” will use “objective detail, arranged carefully to evoke the emotional response in the readerthat the writer wants to create”).  

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D. Anticipating Counter-Argument

While the Preliminary Statement should emphasize the client's strongest facts, the writer

needs to consider whether to address adverse information up front. As with any other section of

the brief, determining when and how to introduce adverse facts depends on whether you

anticipate your opponent doing so; generally, the more you want to avoid a fact, the more likely

it is that your opponent will raise it.125  In addition, counsel needs to weigh the strength of his/her

refutation of an adverse fact in deciding where to place it.126  If the writer has a strong counter to

an adverse fact, he/she can arguably “steal [an] opponent’s thunder” by attacking it up front.127 

On the other hand, if counsel doesn't have a compelling strategy for undercutting negative

information up front, he/she might opt to introduce it in the Statement of Facts where it is easier

to lowlight it. One way of weighing the strength of a refutation is to consider whether there is a

way to smoothly integrate the fact into the story from the client’s point of view.128 

The following example illustrates some of the complexities of the drafting process. The

hypothetical involves a relatively new statute and an unsympathetic client.

The Statute: In 2012, the state of X enacted a statute that was meant to address a host of

sexual predation crimes. The statute was adopted in response to the kidnapping, rape and murder

of a minor by an adult with a record of sexual offenses who had recently moved into the

neighborhood where the victim lived. X.S.A. 4C:12-1(b) provides that "an actor is guilty of

criminal sexual activity if he commits an act of sexual contact with the victim under any of the

circumstances set forth in section 4C:12-1(c)". The applicable section of X.S.A. 4C:12-1(c)

states that "an actor is liable for criminal sexual contact if he uses physical force or coercion, but

125 ROBBINS ET AL., supra note 8, at 178.126 ROBBINS ET AL., supra note 8, at 183.127 ROBBINS ET AL., supra note 8, at 176.128 ROBBINS ET AL., supra note 8, at 180.

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the victim does not sustain severe personal injury." X.S.A. 4C:12-1(d) defines sexual contact as

"an intentional touching by the actor, either directly or through clothing, of the victim's or the

actor's intimate parts for the purpose of sexually degrading or humiliating the victim or sexually

arousing or sexually gratifying the actor." X.S.A. 4C:12-2 provides that "anyone found guilty

under the statute is subject to the lifetime registration requirements imposed on known sex

offenders," which include registering within five working days of moving into any agency's

 jurisdiction and annually updating his/her registration. In addition, the name of anyone found

guilty under the statute is included on an internet site that lists the names and addresses of

registered sex offenders. The stated purpose of the law was to protect the public by "identifying

sexual predators and notifying the communities when such predators move into their

neighborhood." X.S.A. 2C:12-1(a). 

The Facts: The following facts are undisputed:

  on September 4, 2013, at the Springfield Middle School, A.B. and C.D. were walking

through the hallway on their way from one class to another;

 

 both A.B. and C.D. were fifteen at the time;

  A.B. told C.D. he wanted her "hoohoo;"

  A.B. then touched C.D. between her legs:

  C.D. did not tell the teacher in her next class about the incident as she didn't "think it was

a big deal";

 

E.F., a class mate of both the defendant and the victim, was present at the time of the

incident and thought A.B. was "joking around";

  when asked whether other students ever joked around in a similar manner, E.F. said

"yes";

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  when asked why he grabbed C.D., A.B. told the counselor he didn't like her because she

had insulted a friend of his the day before the incident.

The Case Law: Because the statute was adopted recently, there is no case law that is

directly on point. However, opinions generated in cases involving other sexual crimes address

issues relevant to the dispute. The following are summaries of the pertinent points from those

cases:

  unlike homicide, where the perpetrator's intent may be inferred from the manner in which

the offense was committed, the State has to affirmatively establish intent in sexual assault

cases;

129

 

   because children regularly interact in ways that would not be acceptable among adults,

courts have recognized that juveniles must be treated differently under the law for

 purposes of determining the intent necessary for a conviction for sexual assault.130 

The facts weigh toward adopting a legal/policy oriented theme since the central conflict

is about the interpretation of the statute.131  Thus, the writer has to find a way of working with

the goal of the legislative body as that entity is the central character of the story. 132 An added

complication is that the Defendant is a minor, which arguably raises issues beyond the scope of

the statutory language and justifies the introduction of opinions arising out of similar areas of

law.133  Finally, as the client is not inherently sympathetic, focusing on the legal story might help

lowlight his conduct.

129See State v. Cusick, 219 N.J. Super. 452, 466 (N.J. Super. Ct. App. Div. 1987), cert. denied , 109 N.J. 54 (N.J.1987).130See, e.g., Davis v. Monroe, 526 U.S. 629, 651 (1999) (reasoning that “[c]ourts must bear in mind that schools are

unlike the adult workplace and the children may regularly interact in a manner that would be unacceptable amongadults”). 131  ROBBINS ET AL., supra note 8, at 258.132  ROBBINS ET AL., supra note 8, at 258.133  WALTER SHAPO, WRITING ANALYSIS IN THE LAW 262 (Foundation Press 6th ed. 2013) (noting the useof statutes that address similar areas of law to argue statutory interpretation).

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The following are some possible themes that Defendant's counsel might want to

highlight:

1.  the statute was enacted in response to a much more serious crime; thus, the history

of the statute tells a story that contemplated a different scenario - this argument

introduces the classic "spirit versus the letter of the law" dichotomy, thereby tapping

into a judicial "deep frame";134 

2.  applying the statute to an instance of adolescent horseplay risks trivializing it;135 

3.  the punishment doesn’t “fit the crime” as a conviction would label A.B. as a sex

offender for what one witness described as adolescent “joking” - because the

effectiveness of this theory depends on convincing the audience that the

consequences of the defendant's act are disproportionately weighty, the logical place

to start the story would be the end;136 

4.  the law has treated minors differently with respect to other sex offenses, thereby

acknowledging that adolescents are in a particularly delicate developmental phase and

their behavior can’t be judged by adult standards.137  This argument attempts to

create empathy for A.B. by casting him as an "every teenager", with admitted flaws

and failures; it has the added advantage of placing the judge in the positive position of

134 ROBBINS ET AL., supra note 8, at 43-44 (defining “deep frame” as “ideas or values that structure how youview the world” that usually stem from an “uncontested idea,” such as “freedom is good”). See alsoFajans & Falk, supra note 112, at 53, n. 176 (quoting Judge Patricia Walk for the principle that “judges want to know the real -lifeconditions, the actual practices underlying a legal challenge”); Chestek, supra note 81, at 128 (noting that there are

cases “for which a legalistic examination of the applicable rules of law does not yield a ‘tolerable’ answer” and thatin such cases a judge’s “emotions, personality, policy, intuitions, ideology, politics, background and experience” are

likely to play a part in his/her decision).135See  N.B. v. T.B., 297 N.J. Super. 35, 41 (N.J. Super. Ct. App. Div. 1997) (reversing the trial court’s finding that adefendant husband violated the Domestic Violence Act when he pushed his wife out of a doorway to enter a room.The court noted that the Act “should not be distorted or trivialized by misuse”).136Fajans & Falk, supra note 112, at 25 (opining that “in structuring a story, a writer must always thi nk about whereto begin and where to end it, a decision informed by lawyers by their theory of the case”).  137See, e.g., Davis, 522 U.S. at 651 (reasoning that “[c]ourts must bear in mind that schools are unlike the adultworkplace and the children may regularly interact in a manner that would be unacceptable among adults”).

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a mentor who has the power to prevent a juvenile mistake from adversely impacting

the rest of the defendant's life;138 

5.  the Defendant lacked the requisite intent as the misconduct stemmed from his dislike

of the victim, not from antipathy toward her gender; to find otherwise would turn

every incident of misconduct involving a female into a gender crime; 139 

6.  applying the statute in this case amounts to having a court police the schools, which

is not an efficient use of the judiciary as school administrators are in a better position

to do this and have the requisite expertise.140 

In contrast to the "punishment not fitting the crime" motif, counsel for the State might

choose to focus on the "deep frame" of the "separate powers" allotted the three branches of

government. The prosecutor could argue, for example, that the language of the statute is clear

and that A.B.'s actions clearly fall within it. The State might also contend that if the drafters of

the statute intended to distinguish between degrees of sexual offenses or make exceptions based

on the age of the offender, they would have done so. While counsel for the Defendant might opt

to omit the problematic "hoohoo" comment from a Preliminary Statement, the prosecutor is

likely to highlight it as a way of countering the argument that A.B.'s actions did not have a

sexual motive or intent.

138 Ruth Anne Robbins, Harry Potter, Ruby Slippers and Merlin: Telling the Client’s Story Using the Character and Paradigms of the Archetypal Hero’s Journey, 29 SEATTLE U. L. REV. 767, 778, 783-84 (2006). See also Fiction101, supra note 87, at 462-63 (recognizing the appeal of presenting a client as a protagonist in peril who is looking tothe court for aid).139  This argument is also a way of neutralizing the adverse fact of defendant’s ma lic toward the victim byacknowledging it and then using it to undercut the adversary’s contention that the elements of the statute are met.  140See J.N.S. v. D.B.S., 302 N.J. Super. 525, 530 (N.J. Super. Ct. App. Div. 1997) (reversing application of aharassment statute to a defendant who used foul language and blocked the plaintiff’s car on the grounds that the lawwas not intended to put trial judges “in the role of super monitors of modern day parenting”).  

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Sample Preliminary Statement for Defendant:

This case arises from the State's decision to apply a criminal statute intended to protect

the public from sexual predators to an adolescent who touched another teenager's crotch for

approximately three seconds. As a result, fifteen-year old A.B. is facing a criminal record and a

lifetime penalty of having to register as a sex offender for an instant of misconduct that one

witness to the incident characterized as teenage "joking around." Notably, the victim, C.D., did

not “think it was a big deal” and, therefore, did not report the conduct to anyone until called into

a counselor’s of fice the next day.

The statute at issue, X.S.A. 4C:12, was adopted in response to the kidnap, rape and

murder of a child by an adult with a history of committing sexual crimes. The statute provides

that an actor is liable for touching a victim’s private areas only if he/she acted “for the purpose of

sexually degrading or humiliating the victim or sexually arousing or sexually gratifying the

actor.” While A.B. conceded that he did not like C.D. because she had insulted his friend the

day before the incident, he did not mean to sexually humiliate her or arouse himself. The State,

therefore, cannot show the requisite intent as the incident stemmed from A.B.'s dislike of the

victim, not from gender related animus. To find otherwise would turn every incident of

adolescent misconduct involving a female into a gender crime, thereby trivializing a statute

 promulgated in response to the horrific rape and murder of a child, and opening the courts to a

host of litigation arising from adolescent misconduct.

 Notably, witnesses to the incident stated that neither A.B. nor C.D. conveyed fear, anger

or any other indicia of degradation or humiliation. Classmates of both the victim and defendant

confirmed that students sometimes joked with each other in ways similar to the conduct at the

heart of this case. Courts have repeatedly acknowledged that children interact in ways that

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would not be acceptable among adults and, therefore, they cannot be judged by the same

standards. Surely, this well-recognized principle applies to a case where the consequences of a

conviction would adversely impact the rest of the Defendant's life. The alternative would leave a

fifteen-year boy with a criminal record and a lifetime of reporting penalties because of a single

instance of inappropriate conduct that, however misguided and unfortunate, should have been

left to school and parental discipline. Applying a statute meant to protect the public by

“identifying sexual predators” to an incident of adolescent misbehavior would not only undercut

the purpose of the law, but require courts to act as “super monitors” of adolescent disputes, a role

that belongs to parents and educators, who are in a far better position to control and understand

the children in their care.

CONCLUSION

The opening statement of a brief is a critical opportunity to persuade a judge to find for a

client. In lieu of the traditional neutral introduction that simply notes the parties, legal issues and

 procedural history, practitioners should consider using Preliminary Statements that effectively

lay out the narrative theme of the case and then summarize a client's strongest facts and law. As

with a book pitch to an agent, the goal of the Preliminary Statement is to draw the

 protagonist/client and his struggles/legal problems in a way that will engender empathy from the

audience/court and leave that audience wanting to learn more. Thus, an effective Preliminary

Statement will identify the hero/client's goals up front, using specific images and details instead

of relying on general statements. Unlike a book pitch, the opening of a brief needs to incorporate

 precedent into the narrative. Ideally, the client's story and legal theory will cohere into a

 persuasive whole. In sum, a good Preliminary Statement should make the court want to decide

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for your client on an instinctual level, while the rest of the brief affirms this reaction by

 providing detailed legal justification for this outcome.