Judith Fischer


Experts have called an appellate brief’s summary of the argument section “the most important part of a brief,” its “structural centerpiece,” and “your first serious opportunity to argue the merits of your appeal.” Two theories, framing theory and priming theory, help explain why the summary is so important. Framing theorists define a frame as a mental structure that provides a lens through which a recipient will “locate, perceive, identify, and label” an experience. The way a point is framed affects what readers focus on when forming their opinions. A similar concept, priming theory, holds that exposing a reader to chosen information “plants a seed in the brain.” Because the summary of the argument appears near the beginning of a brief, it allows the legal advocate to take advantage of both framing and priming to begin to convince the Court. Thus, it’s a mistake for an advocate to treat the section as an afterthought. The United States Supreme Court’s rules require that a brief contain a summary of the argument section, as do the federal rules and those of some states. And because the section can affect a court’s thinking early, some experts advise including it even if it is not required. Judges, lawyers, and law professors have offered plentiful observations about the section, but the sources are short on specifics about what makes an effective summary. In this article, I first examine what experts have written about the importance of the summary of the argument section and what makes an effective one. I then go beyond the generalities and examine some actual summaries of the argument from United States Supreme Court briefs. Many were written by noted Supreme Court advocates or by the Solicitor General’s office, which is known for its outstanding advocacy. The summaries introduced arguments on such controversial topics as affirmative action, gay marriage, and the separation of church and state. I analyze characteristics of these summaries, including their opening and closing lines, in order to shed some light on this important component of an appellate brief.