Strong Headings, No Cliches, Precise Verbs: How to Craft a Winning Arbitration Brief

By Brandon Vogel

December 21, 2020

Strong Headings, No Cliches, Precise Verbs: How to Craft a Winning Arbitration Brief


By Brandon Vogel

The ability to nudge the decider of your case over to your side and frame the issues under consideration in your way in a single sentence is a very powerful skill.

Yet, it is often overlooked by attorneys.

This was a key message delivered by Dani Schwartz during the New York State Bar Association Continuing Legal Education webinar, “Writing To Win: Pointers and Pitfalls in Arbitration Brief Writing.”

Schwartz and Hon. Billie Colombaro, former Third Circuit Court of Appeals judge, discussed common mistakes and easy remedies to assist lawyers writing briefs.

The Power of Headings

Good headings make good briefs. Writing good headings is hard.

Strong headings state persuasive complete thoughts. Headings should briefly make an argument, state a legal conclusion and, perhaps most importantly, support that conclusion, said Schwartz.

“Unfortunately, it’s rare,” said Schwartz. “It is hard to do in an all-encompassing sentence, but you can do it. “

Lawyers should aim to win the heading battle. Schwartz explained that in the best briefs, the tribunal or judge can read only the headings and grasp your entire case or defense in a moment.

“The best headings move the reader towards the goal line before they even have read the substantive writing,” said Schwartz. “In my view, it is the secret sauce to a winning brief.”

Avoid, at all costs, headings that are not even complete sentences, said Schwartz.

A common overused heading is “burden of proof.” Schwartz explained that headings such as “Claimant has met its burden of proof” or “Claimant has met its burden of proof and is entitled to a final award in its favor” do not move the reader towards your goals.

“They do not help you win,” he said.

Conclusory headings such as “The voluntary payment doctrine bars any relief to Kramerica” make improved legal arguments but are often inconclusive.

“If you can write because at the end of a heading and complete the sentence with an explanation that is not redundant of what your heading already says, you may need to write a new heading,” Schwartz said.

There is a remedy to this practice and it’s an easy one, said Schwartz. Insert that missing because at the end of the heading and fill in the blank after that. “It is as simple as that.”

A good heading contains it its own because. For example, Kramerica is not entitled to recoup installment payments tendered under the contract because claimant made 14 installment payments without protest.” This is miles and miles ahead of “Burden of proof.”

Questions to ask

Judge Colombaro agreed with Schwartz’ assessment. “It really does help the arbitrator.”

She suggested lawyers look to the newspaper for guidance on how to write a header. “Ask yourself would you want to read further? You want your brief to flow from the beginning to end.”

Ultimately, you want to make the judge rule in your favor, said Colombaro. She cautioned that attorneys should focus on their demeanor and not present any nefarious attacks without any evidence.

Colombaro said leading in with your strongest argument is your best bet for success.

She also recommended that lawyers avoid adjectives and adverbs in writing, Instead, she said, use strong precise verbs and nouns. By doing so, you have a clear, flowing brief.

“If you have to ask questions about the sentence, there’s something wrong. Rewrite it,” said Colombaro.

Credibility is your greatest advocacy tool.

“If you lose credibility, the game is over,” said Colombaro. “The arbitrator will not rely on a single thing you said.”

Before you submit the brief, Colombaro recommended that you give the brief to someone you don’t know well, preferably a non-lawyer, for clarity and understanding.

Ultimately, arbitrators do want to do the right thing, said Colombaro. “It is your job to get them to see in a professional and ethical way that your position matches their vision and then they will rule in your favor.”

Draft header
Vandelay Industries failed to prove that it was a duly licensed real estate broker

Vandelay Industries failed to prove that it was duly licensed real estate broker at the time it procured the Buyer

Vandelay Industries cannot recover a commission because it failed to prove that it was a duly licensed real estate broker at the time it procured the Buyer

Vandelay’s failure to prove its licensure as a real estate broker precludes the award of any commission as a matter of law

Because New York law bars an award of a broker’s commission to one not licensed as a broker at the time the claim arose, Vandelay’s expired license defeats its claim

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