Category Archives: Organization

A Flowing Statement of Facts

Using topic sentences and headings

My books: Legal Writing Nerd and Plain Legal Writing

Many lawyers write memos, trial and appellate briefs, or briefs in administrative matters, and those documents contain a section called the Statement of Facts. Naturally, a Statement of Facts should be credible, ethical, and persuasive, but it should also flow—guiding the reader through the events in an easy-to-follow, coherent way. To accomplish those goals, legal writers can use two basic yet effective tools: topic sentences and headings.

Dates aren’t topics. I’ve seen Statements of Facts in which the first sentences of a series of paragraphs all begin with a date. The practice sometimes continues for three, four, or five paragraphs in a row. For example, three consecutive paragraphs might begin like this:

  • On September 30, 2019, …
  • On December 17, 2019, …
  • On February 22, 2020, …

Two problems: First, it’s common advice to omit a flurry of dates. “Avoid over-chronicling—most dates are clutter,” says Judge Mark Painter. “We don’t know what … if any, dates we should remember.”[1] Second, even when dates are relevant, they’re usually not important enough to justify giving them primary placement. When you begin a paragraph with a date, you’re implying that the date is important—topical. That’s usually not true.

So write a topic sentence that encapsulates the main idea of the paragraph. If you need chronology, work the date in later or use relative-time references:

  • BK Events catered a successful party for Mesa, Inc. in September 2019….
  • Three months later, Mesa contracted with BK to cater another party in May 2020….
  • Ultimately, in light of the Covid-19 pandemic, Mesa sought to cancel the contract on February 22, 2020….

Witnesses aren’t topics. I’ve seen Statements of Facts in which the first sentences of a series of paragraphs all begin with a name—often that of a witness. In a brief responding to a claim for benefits, three consecutive paragraphs might begin like this:

  • Cynthia Rao examined the claimant and testified that …
  • Robert Eaton, a psychiatrist, examined the claimant on …
  • Chris Serna, a vocational expert, interviewed the claimant …

Again, two problems: It’s good advice to avoid presenting the facts by witness. “Never include the deadly witness-by-witness summaries of testimony that some brief-writers favor,” says Judge William Whitbeck.[2] More to the point, the witnesses are rarely the topics you’re writing about, and if they aren’t, they don’t deserve primary placement.

Rather than giving witness names prominence in the opening sentence, create true topic sentences. Here, you could use the impairments that the claimant alleges, and other topics as appropriate. It might look like this:

  • The claimant asserted a physical impairment based on lumbar spinal stenosis….
  • A second alleged impairment, based a depressive disorder, relied on the testimony of psychiatrist Dr. Robert Eaton….
  • Yet a vocational expert testified that reasonable opportunities for work existed in the national economy….

For readability and flow, topic sentences often work better than focusing on dates and names.

Try headings. If the Statement of Facts is long or complex, you can aid the reader and improve the flow with headings. After all, few of us want to read long, unbroken blocks of text. You can use short topic headings with boldface text, initial capitals, and no punctuation:

  • Background
  • Previous Claims
  • Alleged Impairments

You can use point headings, too—typically boldface assertions using sentence case and ending with a period:

  • The psychiatrist’s testimony rebuts the claimant’s asserted impairment based on a depressive disorder.

Both techniques, topic sentences and headings, require thought and effort by the writer, but they pay off with a more readable and persuasive Statement of Facts.

My books: Legal Writing Nerd and Plain Legal Writing


[1] Judge Mark Painter, The Legal Writer: 40 Rules for the Art of Legal Writing 33 (2d ed. 2003).

[2] Quoted in Bryan A. Garner, Judges on Briefing: A National Survey, 8 Scribes J. Legal Writing 1, 26 (2002).

Headings, part 2: Consistency, Outlining, and Numbering

Nearly every legal document can benefit from clear, consistent headings. Here in part 2, I offer recommendations for making headings consistent, commend some traditional outlining rules, and suggest a simple numbering system. These guidelines should help you create readable, skim-able documents.

Your headings should form an outline, and in outlines, entries at the same level should be structured and formatted the same way. That may seem obvious, but not all legal writers do it, as I recently learnedwhen reading motions and briefs in preparation for a CLE seminar.

For example, suppose an Argument has the following heading outline:



In that outline, 1 and 2 are at the same level, so they should be structured and formatted the same way. Likewise, both a and b pairs are at the same level, so all four should be structured and formatted the same way.

Specifically, if 1 is a topic heading in boldface initial caps, then 2 should be a topic heading in boldface initial caps. If 1a and 1b are full-sentence, explanatory headings in italics, then 2a and 2b should also be full-sentence explanatory headings in italics. For example—

1. Trial Court Errors
a. The trial court erroneously instructed that police officers may pretend to be electors.
b. The trial court failed to have the court reporter record statements made on audio recordings.

2. Sufficiency of the Evidence
a. Sufficiency of the evidence on attempted election bribery.
b. Sufficiency of the evidence on conspiracy to commit election fraud.

The structure of 1a and 1b (full sentences) does not match the structure of 2a and 2b (phrases). We need to revise 2a and 2b into full-sentence, explanatory headings. The format, italics, should match, too.

In creating headings and sub-headings, follow two key outlining rules.

Rule 1: Keep main topics at the same level and keep sub-topics at the same, lower level. So don’t place main headings and sub-headings at a single outline level. For example—

1. Preliminary Statement
2. Argument
3. The Plaintiff Cannot Prove Consequential Damages.
4. The Plaintiff Cannot Prove Expectation Damages.
5. Conclusion

1. Preliminary Statement
2. Argument
a. The plaintiff cannot prove consequential damages.
b. The plaintiff cannot prove expectation damages.
3. Conclusion

Rule 2: Don’t create a sub-heading unless you have two. If you have only one sub-heading, incorporate it into the main heading. But if your argument or discussion contains only one major issue, it’s okay to have a single major heading for that issue. For example—

a. The suit is barred by laches.
(1) The suit was brought twenty-five years after the original certificate was issued.

a. The suit is barred by laches because it was brought twenty-five years after the original certificate was issued.

The rules for traditional outlining call for outlines to begin with Roman numerals (I, II, III) and to proceed through letters (A, B, C, and a, b, c) and Arabic numerals (1, 2, 3). If you supplement those levels with Romanettes (i, ii, iii), and parentheses ((a), (b), (c) and (1), (2), (3)), you can create an outline with 7 levels: I. A. 1. a. (1) (a) (i). Two suggestions

First, don’t write a document (motion, brief, or even a contract) that needs seven levels of headings. Find a way to condense and consolidate; strive to limit yourself to four or even three levels. You’ll be less likely to lose your reader—and yourself.

Second, if you know any level of your outline will go beyond six or seven items, consider using Arabic instead of Roman numerals or romanettes for that level. Roman numerals get harder to decipher the higher they go. I once read a lengthy contract divided into 60 major sections, each designated with a Roman numeral. It was difficult to refer to any particular article because it took too long (or became impossible) to figure out. What’s XLIV?

In my own outlines, I use Arabic numerals and the alphabet, and I still have four levels available: 1. A. (1) (a)

It’s 44 by the way.


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Headings, part 1: Kinds, Typefaces, and Placement


Nearly every legal document can benefit from clear, consistent headings. The guidelines here are particularly useful for memos, motions, and briefs. In part 1, I describe two kinds of headings, give typeface advice, and offer suggestions for placement and alignment. I’ll discuss two kinds of headings: topic headings and explanatory headings.

Topic Headings
I use the name topic heading for single-word or short-phrase headings that identify topics, like Argument, Discussion, and Statement of Facts. Because a topic heading isn’t a complete sentence, it doesn’t take a period, and you typically capitalize each main word (Initial Caps). I use the mnemonic C-A-P to remember to capitalize everything but conjunctions, articles, and prepositions. The heading above this paragraph is a topic heading.

Topic headings should stand out from the body text, and here are three good options. (1) Use boldface. Yes, ALL-CAPITALS and underlining are common for topic headings, but if you follow modern typographic principles, you’ll avoid them: they can impede reading and are vestiges of the typewriter. (2) Make topic headings slightly larger than the body text by 1 or 2 points, then add boldface. (3) Use a contrasting font (my preference).

A contrasting font? Yes. If the body text is in a serifed font like Cambria, Garamond, or Century Schoolbook—and it probably should be—then topic headings in a sans-serif font like Calibri, Tahoma, or Verdana will really stand out.

Topic headings designate the major sections of a legal document. For example, in a motion for summary judgment, the topic headings might be Introduction, Statement of Facts, Motion Standard, Argument, and Relief Sought. Because of their nature and the way they’re displayed, they don’t require numbering.

Topic headings are often centered, but that’s not a rule; it’s merely a common convention. Knowing, as we do, that many readers will read memos, motions, and briefs on a screen, and knowing that screen readers have a top-left viewing preference and skim a lot, it makes sense to put topic headings on the left margin. That’s what I do.

Legal documents often use explanatory (point) headings.
I use the name explanatory heading (and point heading) for the full-sentence headings and sub-headings that break up a discussion or argument. The persuasive point headings in motions and briefs are the most common types of explanatory headings, but lawyers use non-persuasive explanatory headings, too. I used one above this paragraph.

If a heading is a complete sentence, and an explanatory heading generally should be, then it takes a period. If it’s a sentence, use sentence case, capitalizing only the first word. DON’T SHOUT AT THE READER WITH ALL-CAPITALS, and Avoid Using Initial Caps For Explanatory Headings Because It Looks Odd.

The best way to make explanatory headings stand out is to use the same (serifed) font as the body text but to emphasize it with boldface, bold italics, or italics. That gives you three outline levels beneath the topic headings. Generally, place the first-level explanatory heading on the left margin and indent each lower level one more tab length.

As you format explanatory headings, keep these tips in mind: (1) Avoid over-indenting. If you indent more than three tab lengths, you spoil the left-alignment screen readers and skimmers prefer. (2) Keep explanatory headings to three outline levels if possible. It simplifies things for the reader and helps prevent over-indenting. (3) Use indentation, not mere tabbing, so subsequent lines of text align with the first. Look at these examples.


Yours should look like number 1.


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Conclusions and summaries—expert consensus in a series of posts 3

“Don’t make your reader hang on for the surprise ending. You are not Agatha Christie. Instead, state your conclusion very early in your writing.

. . .

When you state the conclusion right up front, the reader knows where you are going and is more forgiving of your digressions later on.”

Timothy Perrin, Better Writing for Lawyers 98–99 (Law Soc. of Upper Canada 1990).