Keep procedural history sections short but persuasive.
Unless you want the court to focus on procedural matters, discuss your case’s procedural history in a separate section and keep it short.
The general rule: keep procedural history sections short
Procedural history sections are often the most tedious parts of a litigation brief, and you don’t want the judge’s eyelids to droop before they make it to your argument. You should keep such sections short and include only essential details.
Some exceptions
Exceptions apply if your argument, or the opponent’s, turns on procedure, or if procedural points can bolster your argument by, for example, showing that a judge or jury agreed with your position. In those situations, consider including strategic procedural details, such as quotations from rulings or trial transcripts — but be sure that every detail you include is relevant to the current proceeding.
In this example, a litigant used a procedural history section to bolster a lower court’s ruling:
You can also use the procedural history section to suggest that the lower court made a mistake. In this example, a litigant uses the procedural history section to imply that the lower court made an incorrect evidentiary decision:
More examples of strong procedural history sections
Here are a few more excerpts from well-written procedural history sections. Notice how they sometimes explain the lower court’s reasoning in language that is written in a neutral tone yet intended to persuade by leading the reader to draw favorable inferences:
More suggestions for writing effective procedural history sections and strong briefs can be found in my new book, Elegant Legal Writing (Univ. Cal. Press 2024). The book, which has received rave reviews from luminaries including Ross Guberman and Eugene Volokh, is the top new release in the field on Amazon. Please help me sustain its momentum by following me on LinkedIn and sharing my posts with your network.
Ryan McCarl is a founding partner of Rushing McCarl LLP, author of Elegant Legal Writing (Univ. Cal. Press 2024), and adjunct professor at Loyola Law School. For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is available on Amazon, where it has joined books by Ross Guberman and Bryan Garner as a leading work in the legal-writing field.
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When I was in the appellate division of the USAO SDFL, back in the early 80s, we would get very long, elaborate statements of the case. Our answer brief typically said:
"Appellant Jon My was found guilty of conspiracy to bore everyone to death, in violation of 18 U.S.C. 1111 (DE 1291). He was sentenced to 120 years in prison, a fine of $2.65, and 5 years of supervised release (DE 1983). Notice of Appeal was timely filed (DE 2255).
If there was an important motion that was litigated in the district court and a subject of the appeal, we would include a short reference to it such as.
"Appellant filed a motion to dismiss on the grounds that agents of the Bureau of Land Management, conducted a warrantless search of Appellant's backyard and discovered a 900-page manuscript entitled "A Practitioners Guide to the Blue Book." (DE 1060). That motion was denied after a three-week hearing and the court's order is the subject of argument II on appeal (Initial Br. p. 260).
Nothing more was really needed, especially because we were the appellee.