Appellate Briefing Convention: Paragraph Numbering Of Distinct Arguments In Briefs

I've noticed more and more that appellate practitioners are adopting the following briefing convention: Using numbered paragraphs to indicate that the paragraph or paragraphs that follow deal with a distinct argument. You can find examples of this convention in any SCOTUS brief filed by the Solicitor General (take, for instance, the briefs in Fernandez v. California and United States v. Burrage).

The convention isn't being used only at the SCOTUS level, either. The lawyers in SmithKline Beecham Corp. v. Abbott Laboratories put it to good effect in their brief arguing for rehearing en banc by the Ninth Circuit. See Br. at 11-14. And Neal Katyal recently filed a brief on behalf of Google (also seeking en banc review in the Ninth Circuit) that relies on the convention extensively. 

Here's how it works: If you've got a two or more distinct arguments that properly fall within the same subheading and that aren't complex or different enough to warrant their own headings, tag the first paragraph of each argument with either a number or letter. The tag gets indented, just as with any other paragraph. You'll decide whether the tag is a number or a letter based on what sort of heading you'd create if you'd instead chosen that route; if the next-level-down header was going to be "1. Next-Level-Down Header," then you'll instead tag your paragraph with a "1." Or if the next-level-down header was going to be a letter, then you'll use an "A.", "B.", "C.", and so on.  

You'll occasionally even read a brief that stacks the numbering and lettering the same way that advocates usually stack their pointheaders and subheaders. So a brief might give a header, then tag the first paragraph as "1. A." The "B." paragraph then follows a few paragraphs later, followed eventually by the "2." paragraph.

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The convention apparently goes back a ways. In 1992, for example, the American Psychological Association filed an amicus brief in Planned Parenthood v. Casey that separately numbered its arguments. See Br. at 6-8. I don't know where the convention originated, but I do know that the convention is principally being used by the Solicitor General's Office and those lawyers in private practice who once worked within that Office.

I like the convention and use it myself. It's particularly helpful when a subheading of the brief contains a number of separate arguments, but you don't want to muddy the flow of the brief with additional sub-subheadings. That's especially true when those sub-subheadings would only contain a few paragraphs anyways. So the numbering lends the brief a clean, readable feeling while still guaranteeing that the brief is logically ordered and that the distinct arguments are readily accessible by a reader who wants to go back and take another look at a specific point you made. 

The convention also comports with our lawyerly instinct to obsessively categorize and label our arguments. That is, we're always trying to put our arguments into neat little boxes. By paragraph-numbering the arguments in a brief, you can effectively label each "box."

The only problem with the convention is that it's not widely used. Some readers might find it jarring to be confronted by paragraph numbering that they're not accustomed to seeing. And that jarring feeling could easily detract from the reading experience, thus eliminating any benefit the convention might otherwise have given you. 

As a general rule, I'd think that the more sophisticated the appellate court, the better off you are using the convention. If you're not arguing in the Supreme Court, I don't know where that leaves you.