Tuesday, December 3, 2013

Commandment #9--Explain First and Argue Second

#9—Thou Shall Explain First and Argue Second

Too many legal writers launch immediately into their legal arguments without explaining to the reader the context in which the litigation has arisen.  And if the relationship between the parties is complicated or unfamiliar to the reader, this strategy makes it even more difficult for the reader to figure out what’s going on.  The reader needs a roadmap.  Without one, just like the wayward driver, the reader does not know where the writer is heading and what issues the reader should be considering.

I highly recommend the use of an introductory paragraph to lay the groundwork for the reader.  Ideally, an introductory paragraph should briefly explain who the parties are, what the litigation is about, what law applies, and what relief the writer is seeking.    

Let’s take an example from my former area of practice—bad faith and coverage litigation.

Alpha Insurance Company filed this declaratory judgment action to determine its rights and obligations under an automobile insurance policy issued to Calvin Strong.  In 2008, Alpha issued a personal auto insurance policy to Strong.  At Strong’s request, that policy specifically excluded coverage for an accident involving Strong’s son, Germain. 

Strong now seeks coverage under the Alpha policy for a January 9, 2013 accident in which Germain was driving the vehicle insured under the policy.  Strong admits that he intended to exclude coverage for Germain under the policy but contends that named-driver exclusions are contrary to Georgia law.  Strong is incorrect.  Named-driver exclusions, such as the one contained in the Alpha policy, are valid and enforceable if supported by consideration. See Middlebrooks v. Atlanta Cas. Co., 222 Ga. App. 785, 476 S.E.2d 82 (1996).  The named-driver exclusion in the Alpha policy was supported by consideration because Alpha charged a lower premium for the policy than it would have charged had Germain not been listed as an excluded driver.  Thus, the exclusion is enforceable and applies to exclude coverage for the accident.  Alpha’s motion for summary judgment should be granted.

Versus a brief that lacks an introduction: 

An insurance policy is a contract and, therefore, is subject to the rules of contract construction. York Ins. Co. v. Houston Wellness Center, Inc., 261 Ga. App. 854, 854, 583 S.E.2d 903, 904 (2003).  “The hallmark of contract construction is to ascertain the intention of the parties.” Id.  Where the terms of the policy are “clear and unambiguous, the court is to look to the contract alone to find the parties' intent.” Id.   In cases where the policy language is clear, the interpretation is one for the court.  Middlebrooks v. Atlanta Cas. Co., 222 Ga. App. 785, 786, 476 S.E.2d 82, 82 (1996). 

"An insurance company is free to fix the terms of its policies as it sees fit, so long as such terms are not contrary to law, and it is equally free to insure against certain risks while excluding others." York, 261 Ga. App. at 854, 583 S.E.2d at 904.  Thus, "[a]n insurer may reject coverage for a person expressly excluded from its policy." Middlebrooks, 222 Ga. App. at 786, 476 S.E.2d at 82.  If the exclusion is supported by consideration, it is enforceable. Id

Do you see what a difference the first, introductory paragraph makes?  Once the reader understands the framework of the litigation and the general legal issues, the reader is much more likely to understand the importance of the writer's substantive points--doing this in an introductory paragraph will help ensure the reader has the necessary framework at the earliest possible point.  Without that introductory paragraph, the writer has simply thrown a bunch of law at the reader without explaining what that law means in the context of the litigation.  Explain first and argue second. 

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.