United States: Legalizing The Appellate Introduction

Last Updated: September 5 2016
Article by Chris W. Altenbernd

In polite society, it is rude not to introduce yourself, but if you are writing a brief to a Florida appellate court, the issue is complicated. The rule describing the required content of a brief does not describe an introduction.1 This article suggests that the rules should be amended to replace the "summary of the argument" with an introduction that is a summary of the case that may be persuasive.

The Problem

Over the last 15 years, the number of briefs that contain an introduction has increased substantially. These introductions have grown in length, and the rhetoric of the typical introduction has grown increasingly argumentative. Especially in civil cases, a brief now frequently contains an introduction that is as long or longer than the statement of the case or the statement of the facts. This unregulated section of the brief is often longer than the two pages recommended for a summary of the argument and occasionally is longer than the five pages permitted for a summary. All too often, the introduction attacks the opposing lawyer rather than explaining the merits of the case. At best, the brief simply contains two summaries of the argument rather than one.

Responding to this trend, the Second District Court of Appeal recently posted "Practice Preferences" on its website containing the following preference:

"7. Keep a Nature of the Case Statement ("Introduction") Very Brief. If the statement of the case and facts begins with an introduction about the nature of the case, the introduction should be limited to a very brief, non-argumentative statement about the case and the issue or issues presented on appeal. Outlines of substantive arguments are more proper in a brief's summary of argument section...."2

Although other courts have not been as openly critical of the unauthorized introduction, it is clear that more appellate judges are beginning to question the use or abuse of the introduction. However, an introduction is actually a good idea. A well-written introduction is an important part of any persuasive essay. It is critical to achieve the "super-clarity" recommended by Stephen Armstrong and Timothy Terrell.3 It is the fourth tip of Bryan A. Garner in his "Ten Tips for Writing at Your Law Firm."4 While certainly not in the same academic league, this author has long encouraged lawyers to "front-load" persuasive writing.5 Front-loading cannot be achieved without an introduction.

A Little Early History

A brief submitted under the 1962 revision of the Florida Appellate Rules (typed on a typewriter using carbon paper) was a stodgy document. Prior to filing the brief, the appellant's attorney had already filed "assignments of error."6 At least theoretically, the "points on appeal" were required to have been raised in the assignments.7 The brief was required to have a "statement of the case and of the facts and points involved."8 From the author's experience, this requirement was often fulfilled in three separate sections. The brief, however, was not required to have a summary of the argument. Some courts would have stricken a brief that contained one.

When the current rules were first adopted in 1977, "assignments of error" were eliminated in civil cases. The lawyer was given a little more flexibility in the selection of issues. For the first time, a lawyer could include a section in the statement of case and facts that described the "nature of the case."9The rules did not provide for a "summary of the argument."

At the time of these changes, very few lawyers took full advantage of the new requirement that they file a "nature of the case" as the initial portion of their statement of the case and of the facts. Although this rule change clearly authorized at least a paragraph or two that briefly summarized the case in a neutral fashion, it was uncommon to see this information included in a brief. It was rare to see a brief that contained a section entitled "Nature of the Case."

The Advent of the "Summary of the Argument"

The current requirement that a brief contain a "summary of the argument" began in 1984 when the Florida courts decided to borrow this requirement from the federal courts.10 The appellate judges who were on the bench at the time of this change were not unanimous in its value. Initially, lawyers tended to write the summary just before they finished a brief. As a result, it was often poorly written and never edited. When I joined the Second District as a judge in 1989, probably a majority of the judges regarded this section of the brief as the least important section, a section that could be skimmed quickly or even skipped.

In the 1990s, this section of the brief gained in importance.11 The word processer simplified the writing and editing of this section, and lawyers began to appreciate its importance. But when a brief was written with its contents in the order that is contemplated in Rule 9.210, the summary came after the statement of the case and facts. To most lawyers, it seemed illogical to summarize the statement of the case and facts in a summary that followed this section. The rule itself did not expressly contemplate a summary of the facts, although appellate judges often encouraged lawyers to provide a full summary of the case. A summary that omitted the facts seemed disjointed.

The Appearance of the Unauthorized Introduction

Writing the required summary of the argument taught lawyers the value of a summary. For the reasons explained above, its value as a tool of persuasion was limited. As a result, beginning in about 2000, a few lawyers began providing introductions that were actually a summary of his or her case. At seminars and bar meetings, appellate judges would sometimes comment that these sections were helpful. They were, but as explained earlier, this unregulated add-on to the brief began to create more problems than it solved. By the time the Second District published its "preference," that court was seeing too much of a good thing.

A Proposal

If the summary of the argument were removed as a required section of the brief and replaced with a summary of the case at the beginning of the brief, perhaps a better brief could be written without adding any extra length to the brief. This would be similar to the practice of providing an "executive summary" at the beginning of a business memorandum. Because this summary would include a brief synopsis of the facts, the suggested length might be a little longer. To avoid the concern of judges that the introduction has become an overly aggressive argument, the rule, or if need be the committee comment, could encourage a more restrained persuasive rhetoric.

The amendment to Rule 9.210(b), with additions and deletions, might read:

"(b) Contents of Initial Brief. The initial brief shall contain the following, in order:

(1) A table of contents listing the sections of the brief, including headings and subheadings that identify the issues presented for review, with references to the pages on which each appears.

(2) A table of citations with cases listed alphabetically, statutes and other authorities, and the pages of the brief on which each citation

(3) A summary of the case, suitably paragraphed, condensing succinctly, accurately, and clearly the basic facts of the case and the argument(s) actually made in the body of the brief. The summary may be persuasive, but not argumentative. It should seldom exceed 2 ˝ pages and never 5 pages.

(4) A statement of the case and of the facts, which shall include the nature of the case, the course of the proceedings, and the disposition in the lower tribunal. References to the appropriate pages of the record or transcript shall be made.

(5) Argument with regard to each issue, with citation to appropriate authorities, and including the applicable appellate standard of review.

(6) A conclusion, of not more than 1 page, setting forth the precise relief sought.

(7) A certificate of service.

(8) A certificate of compliance for computer-generated briefs."

I hope this article can generate some debate and comment. If the idea is well received, perhaps the Appellate Rules Committee will consider its adoption.

Republished with permission by the The Florida Bar Journal
Volume 90, No.8, Sept/Oct 2016 © 2016 by The Florida Bar Journal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.