We’ve all heard the conventional thinking about introductions and conclusions. It goes something like this:
- Introduction: Tell them what you’re going to tell them.
- Body: Tell them.
- Conclusion: Tell them what you just told them.
In an article I recently came across, attorney Bret Rappaport challenges that conventional thinking. And in doing so, he draws lessons from another creative discipline—photography—and eminent photographer Ansel Adams. Writing Like a Photographer Thinks: Using Ansel Adams’s Composition Principles to Write More Effective Persuasive Introductions and Conclusions, 28 J. Legal Writing Inst. 263 (2024).
For the introduction, Rappaport asks us to consider how a photographer composes a photograph by finding the right place to stand and framing the image—deciding what goes inside and outside the frame. Similarly, the brief’s introduction should tell the reader where the brief-writer stands and frame the big picture for how the case should be decided.
Some examples provided by Rappaport will give you a better idea of what he’s talking about than my attempt to summarize. One comes from a brief in Virginia House of Delegates v. Bethune-Hill, 139 S.Ct. 1945 (2019). You won’t have to guess whether this is the appellant’s or the appellee’s brief:
Two points of black-letter law and a straighforward application of this Court’s precedent resolve this case.
The black-letter law is:
-
- Standing rules apply only to parties playing offense, not defense; and
- As the party playing offense, an appellant must have “standing to appeal.” [Citation omitted.]
The only appellants here are the lower chamber of Virginia’s bicameral state legislature and its speaker (together, the House). The House does not represent the Commonwealth of Virginia, and a component of state government has no standing to appeal that is separate from the State of which it is a part.
Rappaport’s second example is from Bucklew v. Precythe, 139 S.Ct. 1112 (2019), a capital-punishment case. Again, you won’t have any trouble figuring out where the brief-writer stands or where the brief is headed:
Justice is long overdue for Russell Bucklew. Over 22 years ago, in a vicious crime spree Bucklew committed murder, attempted murder, kidnapping, rape, escape from jail, and assault. He was convicted and sentenced to death. He now seeks an effective exemption to the death penalty through an as-applied challenge to Missouri’s method of execution.
For the conclusion, Rappaport suggests trying a little pathos—emotion. He reminds us that, “[w]hile blatant pathos may backfire as being overly manipulative, pathos plays an important roll in all persuasive writing, including legal writing.” Again, an example he provides illustrates the point better than my attempt to summarize. This come from a brief written by Jeff Fisher in Ohio v. Clark, 576 U.S. 237 (2015):
As hard as child abuse sometimes is to prove, it has been recognized for centuries that such a criminal charge is even “harder to be defended by the party accused, though innocent.” Indeed, due to the “heinousness of the offence,” there is a special danger that the jury may be “overhastily carried to the conviction” by false or innacurate accusations. For hundreds of years, the Anglo-American legal system has recognized that the best antidote to this danger is cross-examination—“the greatest engine ever invented for the discovery of truth.” This Court should turn away the State’s request to systematically dispense with that protection where it is most needed.
As Rappaport says, “This powerful conclusion offers flowing prose that harnesses and deploys pathos by focusing the justices on dedication to truth finding.” Citing Ross Guberman’s Point Made, he suggests “end[ing] your brief with a bit of ‘heft’ and, “[i]f you’ve kept your emotions in check throughout your argument, let yourself vent a bit in your conclusion.’”
What all these examples share is the power to move the reader. The same can’t be said for “This is what I’m going to tell you” or “this is what I just told you.”