Amy Bitterman

Rutgers University School of Law - Newark

123 Washington Street
Newark NJ
Phone: 973 353 3059
Email: amy7833@aol.com
IN THE BEGINNING: THE ART OF CRAFTING
PRELIMINARY 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
Statement2 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

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 COMMCN & 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 the
early 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, THE
DAILY 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).
4
SeeStanchi, 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 brief
should offer the reader a preview of what arguments the parties will advance).
5
As one writer recently noted, [j]udges read a lot. A whole lot. Benjamin R. Opipari, What Attorneys Cam Learn
from Childrens Literature, and Other Lessons in Style, 17 PERSPECTIVES: TEACHING LEGAL RESEARCH &
WRITING 135, 141 (2009). Thus, any technique that makes an advocates 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 cases
on 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).

Electronic copy available at: http://ssrn.com/abstract=2510949

effective way to open a brief.6Inter 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

Katauskas, 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 theme
that 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 the
foundation for the decision makers memory of the events and people involved in the case).
7
Katauskas, 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 labyrinthine
without an overview of the case).
8
See MESSING, supra note 2, at 193; RUTH ANNE ROBBINS ET AL., YOUR CLIENTS 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 a
movie trailer, Preliminary Statement has to convey the context of the story and introduce the main characters in a
very 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-bookpitch/.

Electronic copy available at: http://ssrn.com/abstract=2510949

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.

Sterry, supra note 10.
13
Sterry, supra note 10.
14
Johansen, supra note 1, at 42. See also Stanchi, supra note 1, at 306 (noting that a persons response to later
information 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).
12

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
18

SeeBroder, supra note 1, at 7 (suggesting that a Preliminary Statement should be under two pages. . . something
that quickly and memorably tells the reader why you should win).
19
MESSING, supra note 2, at 194.
20
See also MESSING, supra note 2, at 193, 195.
21
See Sterry, supra note 10.
22
See Sterry, supra note 10.
23
See Petruzzell,supra note 7, at 12.

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.

Johansen, supra note 1, at 44; Stanchi, supra note 1, at 310 (noting that psychological studies have confirmed the
enduring 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).
25

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 a
neighbourhood, this truth is so well fixed in the minds of the surrounding families, that he is
considered 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 Netherfield
Park 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 Inn
Hall.Implacable November weather. As much mud in the streets as if the waters had but newly
retired from the face of the earth, and it would not be wonderful to meet a Megalosaurus, forty
feet long or so, waddling like an elephantine lizard up Holborn Hill. Smoke lowering down from
chimney-pots making a soft black drizzle, with flakes of soot in it as big as full-grown
snowflakes-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 their
foot-hold at street-corners, where tens of thousands of other foot passengers have been slipping
27

AUSTEN, supra note 1, at 5.

and sliding since the day broke (if this day ever broke), adding new deposits to the crust upon
crust of mud, sticking at those points tenaciously to the pavement, and accumulating at
compound 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 the
old ladies of Padova get. We don't want to deprive them. We only need the gold and silver
objects. 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 I
reached for a third glass, my brother, Paolo, moved the bottle to the other side of the table. The
sun 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).

Amy Bitterman, Out of the Mouths of Saints, 25 THE CREAM CITY REV. __, 28 (2001).
30
SeeSterry, supra note 10 (reporting that one of the tips the agents gave for an effective pitch was [d]ont tell us
its funny, make us laugh. Dont tell us its scary, scare us. Dont tell us its 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 that
activates the impressions or adjectives sought to be primed).
29

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 are
more persuaded by conclusions that are implicit rather than explicit, especially when the reader is more involved in
the communication).
32
Id. at 1216.

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,
33

See also Johansen, supra note 1 (noting that most trailers fall into one of the following three types, depending on
the technique used to attract the viewer: 1) the genre trailer, which emphasizes the kind of advertised, i.e. romantic
comedy, 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 the
techniques used in version two of Samples A and B above, while the story trailer is analogous to version two of
Sample C above).
34
Higden, supra note 31, at 1216.
35
See, 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.
37
Katauskas, supra note 4, at 45.
38
SeeHigdon,supra note 31, at 1248 (noting that repetition reaffirms the data on which hypotheses should be
ground).

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.

39

Katauskas, supra note 4, at 45.

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 the
relevant law that will ultimately guide the resolution of that particular case).
42
Higdon, supra note 31, at 1243.
43
See Higdon,supra note 31, at 1246.
44
Higdon, supra note 31, at 1245 (noting that rule statements present prime opportunities for foreshadowing).
40

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).

Id. at 2432-33.
47
Id.
48
Id. at 2415.
49
Id. at 2434.
50
Higdon, supra note 31, at 1244.
46

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 from
twenty-one to forty-nine, ten African American and one Hispanic. Fully occupying the well of
the court were counsel for the defendants, assistant United States attorneys, agents of the Federal
Bureau of Investigation, and a phalanx of United states Marshals. Jammed into the gallery were
defendants' anxious mothers, girlfriends, other family members, and friends.
The indictment embraced twenty-three counts, connected by a conspiracy to sell, and the
selling of, crack cocaine and heroin in the hallways of, and the streets surrounding, a public
housing 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 to
this pass, and what should be done with them if they were convicted - as all of them eventually
were, by guilty pleas? Some of the unsatisfactory answers in such all-too-frequent urban
tragedies are discussed in the memorandum that follows.
The issue of what should be done about these defendants and others like them, is central
to the law's rationale for the heavy mandatory minimum incarceratory sentences being imposed
in this case. For a number of the defendants, they are much heavier than are appropriate. One of
our 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 the
wisdom of federal mandatory sentences. In too many cases, mandatory minimum sentences are
unwise and unjust.'
As a group, defendants grew up in dysfunctional homes characterized by a combination
of poverty, unemployment, undereducation, crime, addiction to drugs and alcohol, physical and
emotional 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-school
difficulties. 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, which
turned to guns and violence, contributing to the degradation of their community.
While the defendants are before this court because of the choices they themselves have
made, 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 through
Reconstruction, Jim Crow, northward migration, de jure and de facto segregation, decades of
neglect, 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).

Protection of the public requires serious terms of incarceration. But enforcement of the
harsh mandatory minimum sentences required by Congress imposes longer terms of
imprisonment than are necessary. Such long years of incarceration and separation from relatives
generally 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 the
defendants and provide occupational training. Drug and alcohol treatment will be made
available. Upon their release from prison, the court's probation service will provide strict, dayto-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.
Higdon, supra note 31, at 1253.
54
See Bannister at *57. See also Higdon, supra note 31, at 1254 (citing a Supreme Court of Vermont ruling that a
lesbian 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 court
overcame the plain language of the statute by finding that the primary purpose of the states adoption statutes was to
promote the welfare of children and that application of the statutes should implement that purpose). Id.
55
See Bannister at **121-25.
56
See Bannister at *90.
53

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 the
recipient of a persuasive message 'resistant' to opposing arguments, much like a
vaccination makes a patient resistant to disease. In an inoculation message, the
message recipient is exposed to a weakened version of arguments against the
persuasive message coupled with appropriate refutation of those opposing
arguments. The theory is that introducing a 'small dose' of a message contrary to
the persuader's position makes the message recipient immune to attacks from the
opposing 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.

See Higdon,supra note 31, at 1256.
59
See 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, 60
RUTGERS 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.
58

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.
Higdon, supra note 31, at 1240.
66
Bannister at *4.
67
Id.
68
Petruzzell, supra note 7, at 11; Broder, supra note 1, at 6 (stating that a drafter cannot write [the Preliminary
Statement] properly until [he/she has] finished drafting [the] fact statement and argument).
65

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).
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.
72
See Abrams,supra note 5, at 18 (noting that Ernest Hemingway claimed to have rewritten the ending of A Farewell
to Arms thirty-nine times).
73
MESSING, supra note 2, at 195. See also Petruzzell,supra note 7, at 11.
74
Stanchi, supra note 1, at 312, 314, 332.
70

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 court
can 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 to
rule 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
75

SeePetruzzell, supra note 7, at 11; Johansen, supra note 1, at 42 (comparing Preliminary Statements to movie
trailers and noting that, since trailers only last a few minutes, [t]he first decision to make is which storyline of the
film should be featured in the trailer).
76
Johansen, supra note 1, at 45 (nothing that a well drafted Preliminary Statement can prime ones reader so that
the 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 their
existing 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, 9
LEGAL COMMCN & RHETORIC 99, 135 (2012) (advising advocates to learn as much as possible about a
judges background and prior rulings to determine what kinds of stories the judge responds to.). See also Fernanda
Eberstadt, Outsider Art, N.Y. TIMES BOOK REV. BR1 (March 30, 2014), available at
http://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), available
athttp://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).

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 psychological
studies have shown that stories are a key way of evoking an emotional response in a subject that will carry forward
into later judgments and decisions. See also Stanchi, supra note 1, at 310, 315; Chestek, supra note 81, at 99 (noting
that [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.
85
See, e.g., Judices 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 to
address adverse information depends on a number of factors, including whether or not the advocate has a
competent and effective refutation available. Id. at 383.

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 Writing
Techniques 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 stories
require 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.

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 Everybody94
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] storys reference to stock stories bears
on its persuasiveness. To the extent that a story is congruent with them, stock stories not only lend plausibility to hat
story, but also offer a frame of reference for the storys significance). In an article in the Magazine Section of the
Sunday 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 at
http://www.nytimes.com/2014/04/13/magazine/leibovich-rich-politicians.html.
95
Fiction 101, supra note 87, at 471.
96
Stanchi, supra note 1, at 315.

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 governments 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 a
Preliminary Statement as well.
99
Stanchi supra note 1, at 310 (nothing that [i]t is more than a figure of speech to say that readers get a feel for the
case from the first of the brief. It is literally true).
100
Lee, supra note 98, at 620.
101
Stanchi supra note 1 (pointing out the metaphoric quality of the prime).

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 selfindulgent 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

102

Stanchi supra note 1, at 310 (explaining that the Preliminary Statement can function as a prime for the case a
whole 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 must
complement each other in a natural way).
103
Stanchi, supra note 1, at 344.
104
See Lee, supra note 98, at 626 (noting that preceding and surrounding facts color how a reader views the central
event 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 a
means of centering the readers attention).

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 1986.114Inter
alia, the court points out that the law was "passed without many of the formalities that normally

108

Stanchi, supra note 1, at 310.

Bannister at *2.See, e.g., WILLIAM THACKERY, VANITY FAIR (Penguin 1968), which begins with the
following 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 Pinkertons academy for young ladies, on Chiswick Mall, a large family coach, with
two fat horses in blazing harness, driven by a fat coachman in a three-cornered hate and wit, at the rate of four miles
an 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, 15
J. LEGAL WRITING INST. 3, 24 (2009) (noting that opening with a compelling scene is an excellent way to hook
the reader).
113
Bannister at *4.
114
Id. at *61.
109

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.
MESSING, supra note 2, at 206.
117
Stanchi, 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).
116

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

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

119

See MESSING, supra note 2, at 198 (stating that openings often work best when they frontload persuasive
facts).
120
See 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 opening of a brief should motivate a judge to feel like some wrong has occurred
that [he] must remedy).
121
See 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).
122
Fajans & 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 for
that 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 biased
description of the clients story, which could undermine the writers 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 reader
that the writer wants to create).

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] opponents 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 clients 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.

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.
126

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";

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.

129

See 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).
130
See, 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 among
adults).
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 use
of statutes that address similar areas of law to argue statutory interpretation).

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 doesnt 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 cant 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 you
view 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-life
conditions, 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 that
in such cases a judges emotions, personality, policy, intuitions, ideology, politics, background and experience are
likely to play a part in his/her decision).
135
See N.B. v. T.B., 297 N.J. Super. 35, 41 (N.J. Super. Ct. App. Div. 1997) (reversing the trial courts finding that a
defendant 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).
136
Fajans & Falk, supra note 112, at 25 (opining that in structuring a story, a writer must always think about where
to begin and where to end it, a decision informed by lawyers by their theory of the case).
137
See, e.g., Davis, 522 U.S. at 651 (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 among adults).

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 Clients Story Using the Character and
Paradigms of the Archetypal Heros Journey, 29 SEATTLE U. L. REV. 767, 778, 783-84 (2006). See also Fiction
101,supra note 87, at 462-63 (recognizing the appeal of presenting a client as a protagonist in peril who is looking to
the court for aid).
139
This argument is also a way of neutralizing the adverse fact of defendants malic toward the victim by
acknowledging it and then using it to undercut the adversarys contention that the elements of the statute are met.
140
See J.N.S. v. D.B.S., 302 N.J. Super. 525, 530 (N.J. Super. Ct. App. Div. 1997) (reversing application of a
harassment statute to a defendant who used foul language and blocked the plaintiffs car on the grounds that the law
was not intended to put trial judges in the role of super monitors of modern day parenting).

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 counselors office 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 victims 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

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

for your client on an instinctual level, while the rest of the brief affirms this reaction by
providing detailed legal justification for this outcome.