last page, so arranged as to serve as the endorsement when the brief is folded for filing. In furtherance of this same purpose of promoting convenience of identification for filing, reference, etc., the Title of the argumentative brief is but slightly different. It appears on the back of the last page only, and, like the title of a book, serves as an endorsement. For example: WILLIAMS COLLEGE BRIEF OF AN ARGUMENT ON THE PARTICIPATION OF FRESHMEN IN INTERCOLLEGIATE ACTIVITIES WILLIAM D. SPENLOW, '16 January 24, 1916 The Preliminary Statement and the Preliminary Introduction. This division of the legal brief usually follows immediately after the Title. It states, in a concise paragraph, the general substance of the case at issue. It is phrased at full length, rather than in the abbreviated form that characterizes titles and general memoranda. The following preliminary statement is typical: This is an appeal from a judgment of the Appellate Division, Second Department, affirming a judgment of the Supreme Court, entered in the Hamilton County Clerk's Office, May 15, 1913, in favor of the Plaintiff, and against the Defendant for $5000 damages, and $161.40 costs, entered upon a verdict of a jury after a trial held at the March, 1913, term before Mr. Justice William W. Collins. SPENLOW AND JORKINS, Attorneys for Defendant. The corresponding division of the argumentative brief -the Preliminary Introduction is but a slight modi fication of the Preliminary Statement as presented above. It serves to introduce the subject of discussion and to acquaint the reader definitely with the general matter in hand before he undertakes the rather elaborate introduction wherein terms are defined, extraneous matter cleared away, and the main issues unmasked. It therefore conveniently occupies a separate page, and serves the same purpose as does the title-page of a book. For instance: This is a brief of a speech by Senator Beveridge of Indiana, delivered in the Senate of the United States, January 9, 1900, in favor of the retention of the Philippine Islands by the United States, and presented in reply to a request from the Senate for the results of a personal observation recently made by the speaker in the islands of the Far East. The advantage of this somewhat full, but certainly clear, Preliminary Statement is that, at the very threshold of his work, the reader finds his mind entirely satisfied as to the exact subject that the maker of the brief is about to discuss. It is no part of this Preliminary Introduction, however, to present any step of the argument, or even to clear any ground preparatory for the argument. It is simply explanatory, and serves no other purpose than to state in full all that is necessary for understanding the exact substance of the brief that follows. The Facts and the Main Introduction. The third step in the legal instrument - the Facts, or the Statement of the Case, is of the greatest importance. This portion of the lawyer's brief should contain "a clear and concise statement of what he claims to be the substance of the record . . . the substance of the pleadings, when questions arise upon them, and also the leading facts established by the evidence, where questions of fact are to be determined." 1 1 Brief-Making, p. 223. So important is this portion of the brief in legal practice that failure to include it within the instrument is attended with various penalties, ranging from a reprimand to dismissal of the case. Indeed, it is commonly asserted by lawyers that this division of the brief presents the actual crux of the whole presentation. What the court needs is not guidance upon the argumentative and legal aspects of the case submitted by counsel, but, rather, a lucid exposition of the facts. With these the court should be quite equal to the task of reaching a decision. "This is far more important than it appears to many lawyers, especially where a case is long and complicated, and where the facts, to be intelligible, must be extracted from a large mass of evidence and grouped together. To suppose the court will do for you what you will not do for yourself, and produce order out of chaos, is a great mistake. You must start with some clear and logical theory as to what the facts really are, for, if your facts do not commend you to the appellate court, it may look with some suspicion on your logical conclusions, however convincing they may be." 2 An example of the Statement of the Case, as it appears in the legal brief, is presented on page 44. The corresponding division of the argumentative brief -the Main Introduction is similarly of the utmost importance, although it is probably of less relative significance, in this case, than the argumentative matter that follows. It is a recognized principle of argumentative procedure that, previous to all citation of evidence and the establishment of proof, terms shall be defined, facts necessary to an understanding of the demonstration set forth, and all unessential matter eliminated. Everything that is necessary to this clearing of the decks belongs to the Main Introduction. The various steps of this pre 1 Brief-Making, pp. 223-24. 2 Albany Law Journal, October, 1889. liminary analysis are thus specified by W. T. Foster in his Argumentation and Debating (p. 50): 1. The Origin of the Question (the immediate cause for discussion). 2. The History of the Question. 3. The Definition of Terms. 4. The Exclusion of Extraneous Matter. 5. The Exclusion of Admitted Matter. 6. The Exclusion of Waived Matter. 7. The Main Contentions of the Affirmative and of the Negative. It is apparent that this portion of the brief is expository rather than argumentative. Its function is to set forth matter upon which both sides are in agreement, rather than to produce conviction upon contentions regarding which there is difference of opinion. It is also evident that there can be no argument upon the proposition at issue until there is common understanding between the opposing parties regarding the meaning of the terms of the proposition, as well as regarding the various other elements indicated by the steps of the analysis as presented. The form in which the Main Introduction should be presented may be seen in the argumentative brief on pages 58-62. The Specification of Errors and the Statement of the Issues. Upon the fourth main division of the legal brief, the Specification of Errors, it is not necessary to dwell at any great length. The exposition of its various details would lead to the consideration of legal technicalities quite beyond the scope of the present work. The principal consideration is that the specific “ errors" alleged be set forth clearly and in due order, so that the court may, without difficulty, understand the underlying contentions. 66 In the argumentative brief the corresponding division, the Statement of the Issues, has much the same purpose as the Specification of Errors: to present the main contentions underlying the case in dispute. The function of the last step in the Main Introduction, as shown on pages 61-62, the presentation side by side of the affirmative and negative arguments, is to arrive at the basic contentions upon which the argument is to be constructed after all preliminary matter has been cleared away. These fundamental contentions are set forth in definite form in the Statement of Issues. An example of such presentation will be found in the typical argumentative brief on page 62. The Brief of the Argument. The Brief of the Argument is identical in the legal and the argumentative brief, with the exception already noted, that in the case of the legal brief there is a growing tendency to abbreviate this portion and to lengthen correspondingly the introductory portions wherein the facts are set forth for the illumination of the court. The main business of the Argument in the legal brief is to present, together with the facts or propositions open to discussion, the authorities cited by way of proof. In the argumentative brief the citation of authorities is much less extensive and less convincing than in the legal brief; the former contains the arguments that sustain the proposition under discussion, as well as those that through refutation destroy the contentions of the opposing side. A short extract from a brief of each type will illustrate the more "authoritative" character of the legal brief and the more detailed and “probative” character of the argumentative type. (From a Legal Brief) POINT FIRST A general assignment without preferences will not be avoided at the instance of a particular creditor, and such creditor's claim preferred, even on proof that the debtor |