Drafting the
Argumentative Headings
Pages 262 – 266 and pages
348-354 in The Legal Writing
Handbook
Format
You the numbering systems and typefaces
that are typically used in briefs to your
court.
 I. ALL CAPS


A. Regular typeface


1. Regular typeface
Never have just one subheading or one
sub-subheading. (You need at least two)
Format
Each heading should be a complete
sentence.
 Make positive assertions.
 Do not ask questions.

Use headings to define the structure of
your argument

Just as post and beams define the form of
a building, argumentative headings define
the form of the argument. When drafted
properly, they provide the judge with an
outline of the argument.

Look at the table of contents in the
sample briefs.
2. Use your headings to persuade.


In addition to using argumentative headings to
define the structure of your argument, use them
to persuade.
Begin your heading by setting out a positive
assertion. For example, if you want the court to
grant your motion to suppress, make that
assertion: “The court should grant the motion to
suppress . . . .” In contrast, if you want the court
to deny the motion to suppress, make that
assertion: “The court should deny the motion to
suppress . . . .”

Effective

The court should deny the motion to
suppress. . ..

The court should admit Martinez’s
show-up identification. . ..


After setting out your assertion, set out
the facts or reasons that support your
assertion. The most common format is
as follows:
Assertion
because
reasons.
Subheading from Petitioners’ Brief
Assertion
because
support
Tariq Mahoney is unable
to litigate his own cause
of action
because
he lacks free
access to the
court

Rewrite the following heading setting
out the assertion and then the reasons

From Respondents’ brief:

TARIQ MAHONEY, A GERMAN CITIZEN WORKING
AGAINST THE UNITED STATES IN A FOREIGN
COUNTRY DURING THE WAR ON TERRORISM,
DOES NOT HAVE STANDING TO PETITION FOR A
WRIT OF HABEAS CORPUS.

Hint? What facts do you want to put in the
position of emphasis?
Possible rewrite:

TARIQ MAHONEY DOES NOT HAVE
STANDING BECAUSE HE IS A GERMAN
CITIZEN WORKING AGAINST THE UNITED
STATES IN A FOREIGN COUNTRY DURING
THE WAR ON TERRORISM.

There are, however, other formats that
work well. For example, sometimes you
will set out the assertion in the main
heading and the reasons or support in
the subheadings.
Other ways to construct headings rewrite the sample below.
A.
Roger Mahoney has standing to petition
for a writ of habeas corpus as “next
friend” on behalf of his son, Tariq
Mahoney.
1.
2.
Tariq Mahoney is unable to litigate his own
cause of action because he lacks free access
to the court.
Roger Mahoney represents the best interest
of his son, Tariq Mahoney.
Possible rewrite
I.
Roger Mahoney has standing to petition
for a writ of habeas corpus on behalf of
his son because his son cannot petition
the court on his own behalf and because
Roger Mahoney is dedicated to
protecting his son’s best interests.
A. Tariq Mahoney cannot petition the court
on his own behalf because he does not have
free access to the court.
B. ????
Make your headings readable



If the judge does not read your headings, your
headings do not serve either of their functions.
They do not provide the judge with an outline of
your argument, and they do not persuade.
Thus, to make sure that your headings get read,
keep them short and make them easy to read.
As a general rule, your headings should be no
more than three typed lines.

Judges do not like to be told they
must do something, even when the
controlling law is clear.

You might want to say “should” or
avoid the problem by using passive
voice.