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Professor Gregory Berry

Using Point Headings to Make a Point

Trial Memoranda and Motion Briefs

MEMORANDUM FOR:SUBJECT:

All Law StudentsNotes on Trial Memoranda and Motion Briefs

1. The purpose of this tutorial is to provide guidance regarding the form and content of persuasivetrial memorandum and motion briefs.

2. In general, the single biggest weakness of the typical motion brief is a lack of rigor in applying the

legal analysis paradigm (the "C-R-P-A-C"). Following this framework -- especially the rule

statement and proof components -- offers you the greatest potential for significantly improving theeffectiveness of your brief.

3. Two of the most useful devices you can employ to ensure that your analysis adheres to theCRPAC paradigm are good point headings and thesis statements. The purpose of a point heading is

exactly what the name implies: to STATE YOUR POINT! A vague allusion to the issue or a generaldescription of the matter to be discussed may be adequate in an office memorandum or client letter

but is very ineffective in a trial or appellate brief. Vague point headings do not convey much usefulinformation to the decisionmaker and have the unhappy effect of squandering a valuable

opportunity to highlight, restate, and summarize your arguments.

4. A good point heading "speaks" for itself; a vague heading does not. For example, compare thefollowing pairs of headings and subheadings:

IMPRECISE

HEADING:

"THE PAROL EVIDENCE RULE BARS THE LEGLEWRIGHT

MEMORANDUM"

GOOD

HEADING:

"THE STATEMENTS IN THE LEGLEWRIGHT MEMORANDUM AREIRRELEVANT AS A MATTER OF SUBSTANTIVE CONTRACT LAW

BECAUSE THEY ARE OFFERED TO VARY, CONTRADICT, OR MODIFYTHE CLEAR AND UNAMBIGUOUS TERMS OF THE PARTIES' FULLY

INTEGRATED WRITTEN AGREEMENT IN VIOLATION OF THE PAROLEVIDENCE RULE"

VAGUE

HEADING:"Scope of Duties"

GOOD

SUBHEADING:

"The Statements in the Leglewright Memorandum Are Inadmissible asAdmissions by a Party Opponent's Agent or Employee Because They Do Not

Concern Matters Within the Scope of Leglewright's Duties as Required byMaryland Rule of Evidence 5-803(a)(4).

5. Good point headings contain all the critical features of the CRPAC paradigm: the CONCLUSION

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is clear, the RULE upon which it is based is referenced, and the determinative FACTS areidentified. The reader knows precisely where you're coming from and where you're going in the

discussion to follow. What's more, if she falls asleep or is otherwise distracted before she getsthrough the full elaboration of your argument, at least she is already apprised of the substance of

your positions.

6. Thesis statements are the opening sentence in a paragraph and relate to the particular aspect ofthe point heading that is to be addressed in the remainder of the paragraph. It is the legal or factual

conclusion that the rest of the paragraph must justify. Note how the paragraphs are structured

consistent with the CRPAC paradigm in the example below:

As discussed in this section, the statements in the Leglewright Memorandum do notconcern matters within the scope of Leglewright's duties and thus are inadmissible against

NewDay as an admission by a party. [THESIS STATEMENT and CONCLUSION] Rule

5-803(a)(4) expressly requires that a statement made by an agent or employee during theperiod of her agency or employment must also "concern matters with the scope of the

agency or employment relationship." MD R. Evid. 5-803(a)(4);see Gregory v. Berry, 216

Md. 56 (1956).[RULE STATED] In Gregory, the court held that a statement of an

employee regarding matters not "centrally related" to his duties was not binding on theemployer because it was not within the scope of the employee's duties.Id. at 62.In that

case, an employee's statement that . . . were offered as a party admission against theemployer to prove . . . The court excluded the statement because . . . According to the

court, the employee's statements could not be deemed to be within the scope of his dutiesbecause ". . .(relevant quote) "Id. at 62-63.[RULE PROOF]

The holding in Gregory is dispositive here on the issue of whether the statements in theLeglewright Memorandum concern matters within the scope of Leglewright's duties.

[THESIS STATEMENT] Leglewright's statements are not "centrally related" to herduties as Largo Crossing Site Manager because . . . The record indicates that

Leglewright's duties were limited to . . . In addition, on several occasions Leglewright hadbeen . . . The statements reflected in the Leglewright Memorandum relate not to

construction activities, Leglewright's central duties, but to tenant relations and lease

negotiations. . . . . [RULE APPLICATION] Since her statements are not related to hercentral duties as Site Manager, Leglewright's statements do not "concern matters withthe scope of the agency or employment relationship" as required by Rule 5-803(a)(4)

and, thus, are inadmissible against NewDay. Gregory, 216 Md. at 63.[CONCLUSIONRESTATED].

7. Following the CRPAC paradigm will enhance the quality and effectiveness of your memorandum

or brief but onlyif you have identified the issues properly, and researched them thoroughly. If theissues are misidentified or not researched adequately, following the paradigm will not transform a

bad brief into a good one. Remember everything is connected: issue identification, data collection,solution generation, solution evaluation, decision, action. Do not forget that one of the most

important skills in the lawyer's repertoire is her ability to see the "connection of things."

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How to Write a Motion Brief

How to Write a Reply Brief

Appeal Brief Point Headings

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