Missouri appellate courts take the structure of an argument heading very, very seriously. For decades the Missouri Supreme Court has prescribed the format of “points relied on” and insisted on compliance. Briefs have been stricken and appeals dismissed for wayward headings.

Lawyers have been rebuked in published opinions for presuming to take liberties. I know.

The formula is this: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].” In practice:

The trial court erred in overruling the plaintiff’s objection when defense counsel asked Officer Smith to repeat Ms. Jones’ identification of the driver who ran over her foot, because that ruling violated the hearsay rule and resulted in prejudice to the defendant, in that (1) Ms. Jones’ identification was an out-of-court declaration, (2) the defendant was unable to test the reliability of Ms. Jones’ identification by cross-examination, and (3) no other evidence tended to identify the defendant as the errant driver.

So you have had 20 years or so of formal education, topped off with a juris doctor degree, and somebody who doesn’t know anything about your case—or, more to the point, your analytical and writing abilities—is going to make you follow their formula to introduce your argument. It can be grating the first time. For me, the first 80 or 100 times. But then …

You realize that, as my friend Mark Arnold—an extraordinarily smart and accomplished tall-building appellate lawyer who has guided hundreds of Husch Blackwell rookies into real-court legal writing—recognized long ago, this formula is a brilliant tool. Missouri’s Supreme Court Rule 84.04(d) is a distillation of everything wise about issue framing and argument writing: it makes you focus each argument on a ruling that can serve as a basis for reversal, identify the authority (statute, rule, judicial precedent, general vibe of the thing, what-have-you) so violated that reversal is required, and preview the context of this insult that the ensuing argument will lay out to prove your point.

As Mark tells the young suits, if you really are smart you will use this formula for the argument headings in—and as the organizing principle of—every appellant’s brief you write, no matter the jurisdiction.

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Photo of Michael Gross Michael Gross

Michael Gross is an appellate lawyer in St. Louis, Missouri. In addition to his work in appellate courts, Mr. Gross frequently consults with and performs legal research and writing for trial attorneys before they file suit, during the pendency of their cases in…

Michael Gross is an appellate lawyer in St. Louis, Missouri. In addition to his work in appellate courts, Mr. Gross frequently consults with and performs legal research and writing for trial attorneys before they file suit, during the pendency of their cases in trial courts, and through the mediation process.

Mr. Gross has represented clients in the United States Supreme Court, the Second, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits, and the appellate courts of several states. He previously served as a member of the Eighth Circuit’s civil jury instructions committee.

After graduating from the University of Michigan Law School in 1971 Mr. Gross served as law clerk to the Hon. M. C. Matthes, Chief Judge of the United States Court of Appeals for the Eighth Circuit. He speaks frequently on topics related to appellate practice, legal writing, oral argument, and legal strategy and problem-solving at seminars sponsored by bar associations and other organizations.