The Briefs on the Merits - Bna

714 Supreme Court Practice, 9th Edition Ch. 13.10
<strong>The</strong> purpose of the Summary is to permit busy Justices, who may not
have had time to read the brief in its entirety before oral argument, speedily
to learn the substance of the argument presented. <strong>The</strong> Summary may be the
only part of the brief that a Justice reads before the oral argument, or rereads
shortly before or even during the oral argument. <strong>The</strong> Summary is also important
for a Justice reading the entire brief, bridging the Statement, which has
hopefully left the reader favorably disposed toward the party’s side of the case,
and the Argument, which explains the legal reasons for the desired outcome.
It is thus a clear advantage to preface the Argument with an adequate Summary.
As Rule 24.1(h) makes clear, the Summary should not be a mere outline,
or statement of points or titles. It should be a persuasive narrative argument
in short form, which stands by itself, directed to the heart of the argument on
each point, and citing only the few leading authorities thought to be controlling.
Prior to the adoption of the Federal Rules of Appellate Procedure, the
Court of Appeals for the District of Columbia Circuit required in its Rule
17(7) a summary of the argument of the type used in the Supreme Court.
That rule, in language that may be helpful in preparing a Summary for the
Supreme Court, described the summary as follows:
<strong>The</strong> summary of the argument should not be a mere repetition of the statement
of points or of the assignments of error. <strong>The</strong> summary should be a succinct,
but accurate and clear, picture of the argument actually made in the brief
concerning the points or assignments. Because the summary of argument if properly
prepared is most helpful to the court in following the oral argument and
will often render unnecessary the making of inquiries by the court which consume
time allowed for argument, counsel are urged to prepare the summary
with great care.
<strong>The</strong> Summary cannot, of course, contain all the details of the Argument
or all the citations. It will often be necessary to omit a refutation of all but
the most important of the opposing arguments. Details of facts and legislative
history and distinctions of opposing cases should be limited to the most important
and decisive material. <strong>The</strong> Summary will suffer as much if it is too
long as if it is too condensed.
Although any generalization as to how long the Summary should be is
dangerous, since this will inevitably depend on the nature of the particular
case, the Summary should normally run from 600 to 1,200 words (two to four
pages), but not more than 10 percent of the argument it is summarizing, bearing
in mind that the Summary words count in computing the brief’s 15,000-word
limit. Perhaps an example will best indicate the proper form for a summary. 18
1. <strong>The</strong>re can be no question that, by imposing $4 million in punitive damages,
the jury in this case punished BMW for hundreds of transactions that had
no connection to Alabama. <strong>The</strong> Alabama Supreme Court so found, and the
jury argument of Dr. Gore’s counsel confirms it.
<strong>The</strong> Alabama Supreme Court correctly concluded that extraterritorial punishment
of this sort is unconstitutional. In particular, the application of Alabama
law to punish transactions that have no connection to Alabama was entirely
arbitrary and unpredictable and therefore violated BMW’s right to due process.
18 From brief for petitioner in BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996).