To date, these posts have covered an appellate brief’s Table of Contents and Table of Authorities; the Statement of the Issues; and the Statement of the Case, including the Statement of Facts. This post one and the next several discuss the brief’s argument section.
Rule 208(b)(1)(D), SCACR, governs the form of the brief’s argument section. It provides, “The brief shall be divided into as many parts as there are issues to be argued. At the head of each part, the particular issue to be addressed shall be set forth in distinctive type, followed by a discussion and citations of authority.”
Two points spring from the provision. The rule first requires distinctive headings. These headings are a road map to where you want your reader go. An earlier post explained how effective headings may persuade the reader from the table of contents alone. Next, the rule requires citing authority. Absent a citation, you risk waiving the point.
These points correspond roughly to the first two of Chief Justice’s Toal’s three tips on composing a brief’s argument section. In her treatise, the Chief Justice advocates giving the reader a clear overall framework with argument headings and using citations to show the applicable authority.
The Chief Justice’s third tip is to analyze the facts and the law. She suggests a three-tiered approach:
1. focus on the text, such as the precise words in a statute or the precise elements of the common law claim or defense
2. discuss the case precedent, showing how the helpful cases are analogous and the harmful ones are not
3. argue policy, explaining why your result is the one that the General Assembly intended or is good for the legal system or the greater society.
South Carolina – Tips and News will over the next several posts discuss arguments based on text, precedent, policy, intent, and tradition.
Until then, does anyone have any tips that they would like to share on drafting a brief’s argument section? You can reach me at www.attorneyroberthill.com.