Give Your Brief Headings The Marquee Treatment

A colleague who recently passed the California Bar Examination hosted a group of us to a round of drinks and the talk turned to bar examination grading. Specifically, how little time the graders spent on each essay (I think it was a matter of seconds). Our group included a lawyer who had worked briefly as a tutor to recent (or not so recent) law school grads on how to pass the bar. I learned for the first time how much emphasis is placed by the graders on headings, or portions of exam answers that are underlined or set apart some other way. She explained that, because the graders spend such a minimal time on each essay, headings or other highlighted matter take on a special importance.

I’ve been told this is not so unlike the limited time and attention some judges and their clerks spend reading legal briefs, underscoring the importance of well-chosen and composed headings. I seem to recall hearing somewhere that some judges and clerks sometimes go no deeper in a brief than a review of the headings.

Obviously, then, headings can be particularly important in legal writing. I consulted legal writing guru Bryan Garner’s The Elements of Legal Style, and found that he offers three issues/rules to keep in mind when crafting headings and subheadings. Here’s what he says:

“1. Do not rely on headings to provide transitions. You still need to prepare the reader–perhaps with a transitional word (therefore) or sentence (That brings us to the final point).

2. Be sure that any headings you use convey a definite message to the reader. A vague or ambiguous heading defeats itself.

3. Shun generic headings, such as ‘Facts’ or ‘Background,’ ‘Analysis,’ and ‘Conclusion.’ These often falsely suggest that the facts are discrete from the analysis, or that the analysis is discrete from the conclusion. Unless you are writing in a medium that requires formulaic headings, such as the ‘Statement of Facts’ in a brief or student memorandum, such headings give the impression that the writing follows a formula. And you may even make it formulaic by failing to analyze what organization best suits your purposes. Make your headings serve your text, not vice versa.” (pp. 77-78)

“In addition,” Garner suggests, “make [headings] . . . uniformly brief.” Id. at 78. My girlfriend in law school worked as a legal secretary (in addition to her full-time law school case load). I recall asking her to show me some professionally written legal briefs from her firm. What struck me was both the brevity and informality of the headings, particularly in contrast to the formal headings we were being taught to write by our legal writing professors (some of whom, I’m thinking, had never actually filed a legal brief with a court). I was stunned by one real world opposition which featured a heading that merely said: “This Motion Is A Complete Waste Of Time.” While I don’t think any reader would find this heading compelling, it does have sense of immediacy–of getting to the point–that the lengthy, formal headings we learned to write in law school sorely lacked, but that most readers appreciate.

Perhaps when we penetrate to the farthest reaches of this era of Twittering Tweet-like communications, where brevity is not only prized, but required, there may come a time when 140 characters is all you get. Better make those headings count!