The Summary Follows the Argument
Experienced brief writers know that the summary of argument is usually written after the argument itself. The summary ordinarily should have the same structure as the argument. In our experience, the structure of the argument tends to evolve over the course of drafting and editing. Writing out a summary before writing the argument may serve the same useful function as preparing an organizing outline, but a summary written in advance rarely will be phrased and organized as well as one written after thinking through all the ideas that come up during drafting.
Often, you may wish to begin with some background or table-setting that will not be repeated in the argument section and therefore is not, strictly speaking, a “summary” of any part of the argument. In such instances, it is perfectly legitimate to combine the summary of argument with an introduction, as long as the combination of “introduction and summary of argument” is so labeled and does not cause the section to be too long (more than four or five pages)
Supreme Court Rule 24.1(h) cautions that “[a] mere repetition of the headings under which the argument is arranged is not [a] sufficient” summary of argument. The same caution surely holds true in every court that requires a summary. But it is equally important to remember that the argument headings themselves will also serve a summarizing function. Some readers of appellate briefs do skip over the table of contents and table of authorities when they first pick up a brief, but many do not, and virtually all return to the table of contents at some point when they try to understand the structure of a brief. Thus, you should pay attention to the argument headings so that when they are plucked out from the text and stand on their own, they will comprehensively, comprehensibly, and (within limits) persuasively state the party‘s