brass tacks: explain “who, what, when, where,€¦ · web view2021. 4. 28. · family travel...

Point Made

R O S S G U B E R M A N______________________________________________

President, Legal Writing Pro

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ROSS GUBERMAN is the president of Legal Writing Pro LLC and the founder of BriefCatch LLC. From Alaska and Hawaii to Paris and Hong Kong, Ross has conducted thousands of workshops on three continents for prominent law firms, judges, agencies, corporations, and associations. His workshops are among the highest rated in the world of legal education.

Ross holds degrees from Yale, the Sorbonne, and the University of Chicago Law School.

Ross’s Point Made: How to Write Like the Nation’s Top Advocates is an Amazon bestseller that reviewers have praised as a “tour de force” and “a must for the library of veteran litigators.” Ross also wrote Point Taken: How to Write Like the World’s Best Judges, which Court Review called “the best book . . . by far . . . about judicial writing.” He coauthored Deal Struck: The World’s Best Drafting Tips with Gary Karl and created the online contract editor ContractCatch.

Ross’s newest product, BriefCatch, is a first-of-its-kind editing add-in. Its devoted users include lawyers, law firms, judges, courts, agencies, and corporations around the world. BriefCatch was named one of TechnoLawyer’s Top 10 Products of 2019.

An active member of the bar and a former attorney at a top law firm, Ross has also worked as a translator, professional musician, and award-winning journalist. Slate called his investigative reporting about Fannie Mae “totally brilliant and prescient,” and Pulitzer Prize–winner Gretchen Morgenson wrote that his article “made even the most jaded Washingtonian take note.”

For nearly a decade, Ross has been invited to train all new federal judges on opinion writing. He has presented at many other judicial conferences and for the Association for Training and Development, the Professional Development Consortium, the Appellate Judges Education Institute, and the Corporate Counsel Summit, among others.

Ross is a founding “Trusted Adviser” for the Professional Development Consortium and consults for Caren Stacy’s OnRamp Fellowship. He is often quoted in such publications as the New York Times and American Lawyer.

Ross won the Legal Writing Institute’s 2016 Golden Pen award for making “an extraordinary contribution to the cause of good legal writing.” He was also honored as one of the 2016 Fastcase 50 for legal innovators, and his feed is on the ABA’s Best Law Twitter list. A Minnesota native, Ross lives with his wife and two children outside Washington, DC. Family travel has taken them everywhere from Argentina and Bhutan to Greenland and Zambia.

© Legal Writing Pro 2021. All Rights Reserved.

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Focus

In your introduction or argument summary, show how you win from four perspectives: (1) narrative, (2) logical, (3) pragmatic, and (4) contrasting.

Unfortunately, the judge does not possess the luxury of time for leisurely, detached meditation. You’d better sell the sizzle as soon as possible; the steak can wait.

Judge Ruggero J. Aldisert, U.S. Court of Appeals for the Third Circuit1

Warm-Ups

What are your reactions to these two graphics?


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Brass Tacks: Explain “who, what, when, where, why” (Narrative Element)

Model One: Who, What, When, Where, Why


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Eric Holder’s motion to dismiss, In re Chiquita Brands International

Plaintiffs in this action are relatives of five American missionaries who were abducted for ransom and tragically murdered in the mid-1990s by a communist guerilla group in Colombia, known as the Fuerzas Armadas Revolucionarias de Colombia. Now, more than a decade later, they seek to hold Chiquita Brands International, Inc. liable for those deaths under the Antiterrorism Act, and Florida and Nebraska tort law. There is no allegation, however, that Chiquita was involved in the kidnapping and murder of the decedents, that Chiquita intended that these despicable acts occur, or that Chiquita even knew about them until plaintiffs brought this lawsuit.

Model Two: Funnel + Punch

George Conway III’s motion to dismiss, In re Lions Gate Entertainment Corp. Securities

At issue in this case is whether Lions Gate Entertainment Corp. was required to disclose an SEC investigation. That investigation resulted in a settlement, announced on March 13, 2014, in which


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Lions Gate consented to a set of negotiated charges and agreed to pay a civil monetary penalty in an administrative proceeding before the SEC. The charges did not involve any assertion of intentional fraud. They did not involve any charges against individual officers and directors. And they did not involve the company’s financials or the health of any line of the company’s business, but rather only some unique events that had occurred during a takeover battle some four years earlier.

The settlement’s only financial impact on the company was the civil penalty, which, at $7.5 million, amounted to less than 0.27 percent of Lions Gate’s total assets at the time. The stock did not even drop (in fact, it rose) when, on February 6, 2014, a little more than a month before the settlement was concluded, Lions Gate had announced that “[g]eneral and administrative expenses increased by $18.7 million,” an amount that “included an accrual related to an anticipated settlement of a legal matter that goes back several years”—which turned out to be the SEC settlement that went through five weeks later.

Model Three: Funnel + Flow

Beth Wilkinson’s motion for summary judgment, Roanoke River Basin Ass’n v. Duke Energy Progress

This lawsuit is premised on a disagreement with the considered judgment of the North Carolina Department of Environmental Quality. That state agency, acting pursuant to authority delegated by the Environmental Protection Agency, has issued permits approving Duke Energy Progress, LLC’s operation of a wastewater treatment system at the Mayo Steam Electric Generating Plant since that site opened. This system includes a settling basin that separates coal-ash solids


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from wastewater and stores those solids. DEQ knows the basin is unlined and that, because all earth is permeable, dissolved constituents from the ash can migrate into the surrounding groundwater. Nonetheless, DEQ has inspected Mayo dozens of times and repeatedly reissued the permit without requiring any change to the basin to make it watertight.


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Challenge

Think of a case you’ve been involved in and answer these five questions.

1. Who are the parties and what’s their real-world relationship?

2. What are the parties fighting about?

3. When did the dispute arise?

4. Where did the dispute arise?

5. Why is your side in the right?


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The Short List: Number your path to victory (Logical Element)

After you’ve set up the dispute through the first technique, Brass Tacks, explain what you want the Court to do about the tale and then enumerate the reasons the Court should do so. Make your reasons factual, not circular.

Avoid such reasons as “Defendant is not in breach because Defendant complied with all material terms” or “the applicable case law favors our position.”

Model One: Opening

Cristina Arguedas’s motion to dismiss the indictment, United States v. FedEx


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But the government subverted the grand jury’s vital role as a bulwark against improper prosecutions by misleading the jurors about the two most crucial legal concepts in the case.

First, the prosecution misinstructed the grand jury concerning the proof that could satisfy the mens rea elements of the offenses under consideration. That instruction was incorrect: neither knowledge nor specific intent . . . .

Second, the prosecution failed to properly inform the grand jury about the line that differentiates culpable from innocent conduct. The law recognizes that carriers . . . .

Model Two: Opposition or Reply

Neal Katyal’s respondent’s brief for Minnesota in Minnesota v. [Derek] Chauvin

The arguments in the Petition do not change this commonsense conclusion.

First, there is no conflict in the Court of Appeals. In case after case, the Court of Appeals has confirmed that its decisions are


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precedential from the day they issue. Petitioner’s entire theory for review rests on a single line of dictum in a single Court of Appeals decision . . . . But the opinion below spends three pages analyzing Collins and concludes that . . . .

Second, Petitioner now points to two jurisdictions which have adopted express rules limiting the precedential effect of a pending intermediate appellate decision. But that just proves that the Court of Appeals got it right: Minnesota’s rules lack any such provision.


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Challenge

Complete this prompt based on the excerpts below.

The court should __________________________________________ for three reasons.

First, _____________________________________________________________________________________________________________________________________________________.Second, _____________________________________________________________________________________________________________________________________________________.Third, _____________________________________________________________________________________________________________________________________________________.

A. For decades, under California common law, as interpreted by this Court in Borello, a business has been allowed to deal with sole proprietors . . . as independent contractors[.]

B. The Borello standard has consistently been applied to wage and hour claims of this kind . . . . Borello allows a court to differentiate between employees, who fall within the protections of the Labor Code, and independent contractors, who do not.

C. The opinion of the Court of Appeal would no longer allow for such differentiation . . . . Indeed, the Court of Appeal effectively eviscerates long-established California precedent[, broadly concluding instead] that any business that “suffers or permits” a service provider to work for a contracted fee has automatically “employed” that service provider . . . . [But the] cited language does not, and cannot be used to define who is an “employee” . . . .

D. Since this Court issued the Borello decision in 1989, it has been consistently and extensively relied upon by California courts and agencies at every level . . . .

E. In contrast, the test proposed by the Court of Appeal here is both unprecedented and unrealistic . . . [T]he Court of Appeal’s redefinition of “employee” would wipe out most independent contractor relationships in California . . . .


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Why Should I Care?: Give the court a reason to want to find for you. (Pragmatic Element)

[Y]ou should explain not only what the case is about and what the background law is about, but also why the case is important (or unimportant)—what if anything turns on the outcome, either for the parties or for some larger community.2

Judge Richard Posner, U.S. Court of Appeals for the Seventh Circuit

Especially when you represent a not-so-sympathetic party, explain “what turns on the outcome” if you lose. Such consequences can include suggesting something irrational, upsetting expectations, creating unfounded rules, encouraging undesirable conduct, or discouraging desirable conduct.

Model One: The Fear of Encouraging Undesirable Outcomes

Don Verrilli, FASORP v. Harvard Law Review

FASORP seeks extraordinary judicial relief that would transform this Court into an Article III Editor-In-Chief, with the responsibility to oversee the Law Review’s editor- and article-selection decisions.


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Model Two: The Fear of Encouraging Undesirable Outcomes

Lisa S. Blatt, Carpenter v. Murphy, No. 17-1107 (U.S. Oct. 19, 2018)

Model Three: The Fear of Encouraging Undesirable Outcomes


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Mary Jo White, In re Bank of America Corporation Securities, Derivative and ERISA Litigation

[T]o hold [former Bank of America CEO[ Mr. Lewis liable in these circumstances would set a novel and very troubling precedent, exposing CEOs to liability when they follow the reasonable judgments of their subordinates who opine and consult with counsel on complicated legal issues instead of imposing their own, less- informed will.

Challenge

Choose a dispute in which you represent the less-sympathetic party. Complete at least one blank in the following sentence:

If the Court finds for my adversary, it will

suggest ______________________________________________________________________________________________________________________________.encourage ____________________________________________________________________________________________________________________________.discourage ____________________________________________________________________________________________________________________________.

Flashpoint: Draw a line in the sand (Contrasting Element)


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“Every brief,” says former Third Circuit Judge Ruggero Aldisert, should begin by “identifying the flashpoint of controversy” by contrasting two competing views.

Model One

Ruth Bader Ginsburg’s amicus brief for the ACLU, Regents of the Univ. of California v. Bakke

The issue in this case is not whether the Constitution compels the University to adopt a special admission program for minorities, but only whether the Constitution permits the University to pursue that course.

Model Two

From Morgan Chu’s motion for summary judgment, Univ. of Utah v. Max Planck Gesellschaft

At root, this is not a case about inventorship attribution. Utah wants money, and lots of it.


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Model Three

From Paul Clement’s merits brief for the states, HHS v. Florida (“Obamacare”)

The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed.

Model Four

From DOJ’s reply brief, Knight First Amendment Instit. v. TrumpThe @realDonaldTrump account, in contrast to the official government accounts, has not been “leased” by the government, but rather by Donald Trump himself. And when he exercises control over that property using means available to him both before assuming office and after leaving it, that right belongs to him as a private account holder, independent of his office.

Model Five

From Mary Jo White’s motion for summary judgment, [Donald] Trump v. [Tim] O’Brien & Warner Books

This lawsuit never has been about recovering damages that Trump allegedly sustained as a result of the Book, but instead is about Trump attempting to exact revenge against O’Brien for writing what Trump perceived as a negative book about him and to deter other journalists from doing the same.


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Challenge

Pick a recent dispute. Identify the “flashpoint of controversy” between two competing views of the law or the facts.

This dispute is not about

It is about

-or-

To decide this motion, the Court need only

It need not


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Polish

Use proven style techniques to add interest and variety to your prose.

Strategy

“[W]rite with your ear.” Read your draft aloud to yourself or at least read it through in your mind. If neither you nor anyone you know would ever utter a sentence like the one you have written, head back to the drawing board.3

Judge Robert J. Kapelke, Colorado Court of Appeals

United States v. Stevens: Patricia Millett’s brief for Robert Stevens

Replace the boldfaced terms with something tighter or punchier. Aim for vivid verbs and fewer adverbs.

This is not a case regarding dogfighting or animal cruelty. The

government and Stevens stand together taking a firm stance against

that. The question in this case is more fundamental: whether or not the

government has the ability to send an individual to jail for up to five

years just for making films–films that are not obscene, pornographic,

inflammatory, defamatory, or even untruthful. They are controversial. But

that is supposed to invigorate, not substantially limit, the First

Amendment’s protection.

The Solicitor General adamantly claims, however, that, with

regard to a subject as topical as the humane treatment of animals,

Congress has the power to roll back the First Amendment’s


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protection based upon no more than a legislative weighing of the

speech’s pros and cons. Nevertheless, the notion that Congress can

suddenly strip a broad swath of never-before-regulated speech of

First Amendment protection and send its creators to federal prison,

based on no more than an ad hoc balancing of the “expressive value”

of the speech against its “societal costs” is alien to constitutional

jurisprudence and a dangerous threat to liberty.

That is just the beginning of this statute’s problems. Neither the

government nor its amici can really believe the foundational premise on

which their constitutional arguments rest: that images of animals being

intentionally wounded or killed are valueless and harmful. One need

look no further than the websites of the government’s animal-rights

amici, which use such images to inform, educate, and raise funds.

Documentaries and photographs depicting significantly more

gruesome dogfights . . . have fueled the animal rights movement,

provided support for legislation, and actively encouraged vigorous

public debate. Similar images are commonly found in our media, from

Hemingway to hunting videos, from Charge of the Light Brigade to

Conan, the Barbarian, and from the reports of investigative journalists

to the work of independent documentary makers.

The government’s only answer is to ensure that prosecutors and

juries will inevitably agree that depictions similar to Conan, the

Barbarian have “serious value.” That is debatable. Additionally, it


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misses the point. As the seven “value” exceptions indicate, Congress

implicitly concluded that this speech was not valueless based on its

content, but only based on its viewpoint or speaker identity.

Therefore, Congress enacted a statute, the effect of which is to

make the freedom to speak contingent upon the speaker’s

willingness to run the gauntlet of value assessments by prosecutors

and juries with a five-year felony sentence hanging over his head.

Style Punch List

o Replace a phrase with a word

o Replace a longer word with a shorter word

o Replace a vague verb with a precise verb

o Replace a vague verb and an adverb with a single precise

verb

o Replace a long transitional word with a punchier

transitional word

o Shift a transitional device to add variety in sentence

structure

o Replace flat language with a vivid image

o Replace a “fake” verb phrase (“TAKE into account,” “PROVIDE an illustration of”) with a strong verb (“consider,” “illustrate”)

o Replace a “to be” phrase (“IS indicative of”) with a single strong verb (“suggests”)

o Create a parallel sequence of strong verbs or strong nouns


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Structure

Track the court’s likely questions, not the record and the case law.


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Strategy

In outlining, writing, and editing your argument sections, organize your thoughts through these four steps:

1. In each heading, offer the court a specific, noncircular reason to dowhat’s in the caption.

2. Ensure that the first sentence of each paragraph, if proved true, makes your client better off than it was in the paragraph before.

3. Within each paragraph, explain how each authority works to your client’s advantage while sharing only those details and quotations that link the case to your own.

4. Between sentences and especially paragraphs, use bridging transitions or transition words and phrases that show the reader how the new information fits with the old.

Russian Doll: Nest your headings and subheadings


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Models

From Seth Waxman’s brief in Glick v. Harvey

Hawaii, Hawaii v. Trump

A. Plaintiffs Are Likely To Succeed On The Merits Of Their Claims

1.The Order Is Reviewable

2.EO-3 Violates the Immigration and Nationality Act

a.EO-3 Violates the INA’s Prohibition on Nationality-Based Discrimination

b.EO-3 Violates Section 1182(f)

i. EO-3 does not adequately “find” that entry “would be detrimental to the interests of the United States”

ii.EO-3 exceeds the longstanding limits on the President’s

§ 1182(f) power


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Department of Justice, Hawaii v. Trump

II.Plaintiffs Are Not Likely To Succeed On The Merits

A. The Order Is A Valid Exercise Of The President’s Authority

1.The Order falls squarely within the President’s broad authority

under Sections 1182(f) and 1185(a)

2.The other statutes plaintiffs invoke do not restrict the President’s

broad authority under Sections 1182(f) and 1185(a)

a.Section 1152 does not prevent the President from suspending the entry of nationals from the designated foreign countriesb.Section 1182(a) does not prevent the President from suspending the entry of nationals from the designated countries

B.The Order Does Not Violate The Due Process Clause

1.The aliens affected by the Order do not have due-process rights with respect to their entry into the United States

2.Plaintiffs’ due-process claims on behalf of U.S. citizens lack merit

With you in Spirit: Draft paragraph openers that advance your client’s cause


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Model One

Seth Waxman’s motion for a permanent injunction, MercExchange v. eBay

Heading: Depriving MercExchange of the right to choose to whom it licenses its patented technology is a harm that cannot be remedied with money damages.

¶ First Sentences

1. [A forced license] is “antithetical to a basic tenet of the patent system . . . that the decision whether to license is one that should be left to the patentee.”

2. Forcing MercExchange to license its patent to someone not of its choosing is an irreparable harm—once lost it cannot be retroactively restored nor remedied with money. That is true whether MercExchange uses its patented invention itself in a commercial enterprise, licenses that invention, or even refuses to license or make any other use at all of the patent.

3. But the harm to MercExchange is particularly severe here. MercExchange, and MercExchange’s licensees or potential licensees, are (or aspire to be) competitors of eBay—an entity that commands 90 percent of the relevant market . . . .

4. And as the court explained in Odetics, the argument that future royalty payments ameliorate such harm to a patent holder is untenable . . . . In addition, a compulsory license denies the inventor the opportunity to take an active role in the exploitation of his invention.

5. Permitting eBay to continue using MercExchange’s technology without authorization is antithetical to the patent law and irreparably harmful to MercExchange.

Model Two

Pam Karlan’s Supreme Court brief for Petitioner, Endrew F. v. Douglas County Sch. District

¶ First Sentences


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1. The Tenth Circuit erred in assessing the substantive adequacy of the School District’s actions against a “merely more than de minimis benefit” standard.

2. The Tenth Circuit’s standard also contravenes this Court’s decision in Bd. of Education v. Rowley, 458 U.S. 176 (1982).

3. Rowley also makes clear that the IDEA’s mandate to provide an “appropriate” education requires accounting for the Act’s expressed objectives and implementing provisions.

4. The most accurate understanding of the IDEA’s FAPE requirement is that it obligates schools to provide children with disabilities with substantially equal opportunities to achieve academic success, attain self- sufficiency, and contribute to society.

5. The “substantially equal opportunity” standard is also eminently workable.

6. Finally, the “substantially equal opportunity” standard leaves school officials ample leeway to craft the particulars of educational programs to meet each child’s needs, while protecting the inherent dignity and worth of every child.

Lead ‘Em On: Integrate case law efficiently

Model One: Parentheticals

Morgan Chu, eBay v. IDT:

Defendants should not be heard to complain that they did not have

Alpha Holdings’ documents prior to Mr. Gordon’s deposition when Defendants did not even subpoena Alpha Holdings for documents until


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after Mr. Gordon’s deposition. See E.E.O.C. v. Honda of America Mfg., Inc., 2008 WL 440437 at *6-7 (S.D. Ohio February 13, 2008) (refusing to permit the re- deposition of a witness because the deposing party failed to pursue obvious avenues for discovering documents before taking the deposition).

Mayer Brown, Ameritech Corp. v. International Broth. of Elec. Workers

Young Radiator, 734 F.2d at 326 (reversing judgment enforcing award and remanding to the arbitrator because he “never ruled one way or the other” on the dispositive issue).

The Solicitor General’s amicus brief in The Geo Group v. EEOC

See Branti [v. Finkel, 445 U.S. 507, 516 (1980) (holding that a dismissed employee need not show that his personal exercise of beliefs was chilled because such a rule would “emasculate” the protection of Elrod by failing to fully “eliminate the coercion of belief” with respect to other employees) . . . .

Model Two: Peas in A Pod

Ted Wells and Brad Karp, Easterling v. NFL:

A long line of NFL preemption precedent supports the conclusion that plaintiffs’ tort claims are “substantially dependent” on an analysis of the CBAs. Stringer v. National Football League—holding that a claim against the NFL founded on allegations substantially similar to those advanced here was preempted under section 301—is on point. In Stringer, the widow of an NFL player, Korey Stringer, brought a wrongful death claim against the NFL (and others) after Stringer died from heatstroke suffered at the Minnesota Vikings’ training camp. Like plaintiffs here, the Stringer plaintiff alleged that the NFL assumed a duty to its players “to use ordinary care in overseeing, controlling, and regulating practices, policies, procedures, equipment, working conditions and culture of the NFL teams . . . to minimize the risk of heat-related illness,” and that the NFL breached this duty by “fail[ing] to provide . . . competent information . . . to . . . trainers,


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physicians and coaches regarding heat-related illness.” Specifically—and, again, like plaintiffs here—the Stringer plaintiff asserted that the NFL “fail[ed] to establish regulations” to ensure “adequate care and monitoring of players suffering from heat-related illness” and “regulation of . . . return to practice.” Indeed, except for substituting the word “concussion” for “heat- related illness” in their Amended Complaint, plaintiffs’ allegations mimic nearly verbatim the facts alleged in Stringer and thus are preempted for the same reasons.

Why Judges Hate Block Quotes

To survive summary judgment Plaintiff is required to produce evidence suggesting the existence of a genuine issue of material fact. In Elrod v. Sears Roebuck & Co., 939 F.2d 1466 (11th Cir. 1989), the plaintiff claimed he was terminated from employment because of his age. The defendant claimed it terminated the plaintiff based upon receipt of allegations of sexual harassment and the resulting investigation of those claims. At trial, the evidence focused on whether the plaintiff actually engaged in the conduct with which he was accused. After the jury found in the plaintiff’s favor, the Eleventh Circuit held the focus of the inquiry should not have been whether the plaintiff engaged in sexual harassment, but whether the defendant established a legitimate non-discriminatory reason for its actions—i.e., did the employer honestly believe the plaintiff had engaged in sexual harassment, and if so, whether that belief was the reason for the discharge. Elrod at 1470. Accordingly, the court assumed that “the complaining employees were lying through their teeth,” but noted nevertheless that:

Federal courts do not sit as a super-personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how highhanded its decisional process, no matter how mistaken the firm’s managers, the ADEA does not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation for its behavior.


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Elrod at 1470. If the employer provides an honest explanation for its behavior . . . .

Model Three: Introducing Block Quotes (Case Law)

MoFo and Gibson Dunn, motion for preliminary injunction, Apple v. Samsung

Justice Kennedy explained that non-practicing entities may not be irreparably harmed considering that all they want is money in the first place, and so can be compensated by money damages later:

For these firms, an injunction . . . can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent. When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.


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Model Four: Introducing Block Quotes (Evidence)

Judy Clark, United States v. Loughner

At this hearing, [Dr.] Pietz testified that Mr. Loughner suffers from both schizophrenia and depression but that it is depression, not schizophrenia, which gives rise to his agitation, pacing, and suicidality:

The agitation [Dr. Sarrazin and I have] talked about that. And we believe that his pacing is ruminating, it’s anxiety, and it’s depression he’s being consumed with constantly thinking about events.


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Take Me by the Hand: Transition smoothly between sentences and paragraphs

Challenge One: Transition Words and Phrases

1. Read “Version One” of this paragraph and note how choppy it feels.2. Next, review “Version Two” and add transition words and phrases.

Blanks represent the number of letters. A slash means that the lawyer used a two-word phrase.

Version OneThe correctness of Plaintiffs’ contention with regard to their

need to allege only that the employer knew that the illegal workers it hired had been “brought into” this country illegally would not render Plaintiffs’ allegations sufficient. Plaintiffs only allege that Mohawk hired, harbored, and encouraged illegal workers. Plaintiffs do not allege that any of these workers were “brought into” the United States illegally. None of the allegations cited by Plaintiffs allege that anyone brought the workers into the country illegally. Plaintiffs’ own erroneous interpretation of § 1324(a)(3) does not allow their allegations to state a claim.

Version TwoVirginia Seitz’s motion to dismiss, Williams v. Mohawk

_ _ _ _ / _ _ Plaintiffs were correct that they need only allege

that the employer knew that the illegal workers it hired had been

“brought into” this country illegally, Plaintiffs’ allegations are _ _ _ _

_ insufficient. _ _ / _ _ _ _ _, Plaintiffs only allege that Mohawk hired,

harbored, and encouraged illegal workers; Plaintiffs do not allege

that any of these workers were “brought into” the United States

illegally. _ _ / _ _ _ _ , none of the allegations cited by Plaintiffs

allege that anyone brought the workers into the country illegally. _


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_ _ _ , _ _ _ _ / _ _ _ _ _ Plaintiffs’ own erroneous interpretation of §

1324(a)(3), their allegations _ _ _ _ _ do not state a claim.


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FactsDraft facts that speak for themselves: a story that is persuasive yet not argumentative.

[Because judges] are familiar with almost all well-worn areas of the law, the facts often speak for themselves before the party has a chance to do so in the argument component of the brief.

Judge Clyde H. Hamilton, U.S. Court of Appeals for the Fourth Circuit5

Strategy

Many fact sections suggest that attorneys drafted them for their own records rather than for someone who has never heard the client’s story before. Many other fact sections contain too much spin and rhetoric to be believed.

Imagine you are sitting down with the judge for lunch, and she asks you to tell her what happened to your client. Where would you start? Which details would you emphasize? What would you leave out? How would you confront unfavorable material? What dates would you mention, if any? What would you want the judge to remember?

Drafting your facts should not be much different.


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Show, Not Tell: Let choice details speak for themselves

It’s got to be a good story. I mean every lawsuit is a story. I don’t care if it’s about a dry contract interpretation, you’ve got two people who want to accomplish something and they’re coming together.

That’s a story. And you’ve got to tell a good story . . . .[N]o matter how dry it is, something’s going on that got you to this point and you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments . . . .[C]ertainly here at the Supreme Court and in the courts of appeals you’re looking for a couple of hooks in the facts that hopefully are going to be repeated in one form or another later on in the legal argument, but also are going to catch somebody’s interest. It may not have that much to do with the substantive legal arguments, but you want to catch their eyes.6

Chief Justice John Roberts, U.S. Supreme Court

Model One: Whom to Believe?


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Which of these opening paragraphs puts the client in the best light?

Opening paragraphs in the competing fact sections in [Lilly] Ledbetter v. Goodyear

At trial, Ledbetter presented pay records and testimony demonstrating that in 1997, she was the only woman working as an Area Manager and was paid less than men in the same position. Indeed, petitioner’s salary was less than the lowest paid male in the same job and department and substantially less than men with equal or less seniority. The pay discrepancy between petitioner and her male counterparts ranged from fifteen to forty percent. Petitioner’s pay was, in fact, so low that it sometimes fell below the minimum salary set by Goodyear’s pay policy for her position.

. . . .

Ledbetter was hired on February 5, 1979 as a Supervisor Trainee at Goodyear’s tire assembly plant in Gadsden, Alabama. Shortly thereafter, she became a Supervisor. Ledbetter was paid the same salary, $16,760.52, as the other Supervisors at the Gadsden plant. Moreover, in 1980 and 1981, Ledbetter received the same lockstep pay increases, based on cost-of-living adjustments, as the other Supervisors (15.59% in 1980 and 9.25% in 1981).

Model Two: Cause Looks Good

Ted Cruz’s brief for Texas, Van Orden v. Perry

Those wishing to tour the Grounds have access to brochures, laying out a self-guided tour, that the State Preservation Board makes available to Capitol visitors. The self-guided tour begins in the southeast portion of the Grounds, where the first monument encountered is a memorial to John B. Hood’s Texas Brigade. The tallest monument on the Capitol Grounds (at over forty-four feet in height), it is inscribed with quotes from Jefferson Davis and Robert E. Lee, and is topped by the bronze figure of a Confederate soldier.


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Moving north, the tour continues to the Texas Peace Officers memorial and the Disabled Veterans monument.

The tour then crosses over to the Capitol’s northwest quadrant, which contains seven of the Grounds’ seventeen monuments. This area is the largest grouping of monuments on the Capitol Grounds. Three monuments honor veterans — a tribute to veterans of the Korean War (the largest monument in the northwest quadrant), a tribute to veterans of World War I, bearing the inscription “God— Country — Peace,” and a monument to Texans who died at Pearl Harbor. And four concern children — a replica of the Statue of Liberty in honor of the Boy Scouts of America (at nearly sixteen feet, the tallest monument in the northwest quadrant), a tribute to the Texas Pioneer Woman, depicting a pioneer mother cradling a baby in one arm, a tribute to Texas Children, portraying six children on a visit to the Capitol, one of whom wears a necklace bearing a small cross, and the Ten Commandments monument at issue in this litigation, donated by the Fraternal Order of Eagles and dedicated in 1961 “to the Youth and People of Texas.”

Model Three: Opponent Looks Bad

ACLU’s brief for the petitioner, Hudson v. Michigan

On the afternoon of August 27, 1998, approximately seven Detroit police officers arrived at the home of Petitioner Booker T. Hudson, Jr., to execute a search warrant for narcotics. There is no evidence in the record that the officers had any reason to believe that anyone in the home would attempt to destroy evidence, escape, or resist the execution of the warrant. Officer Jamal Good, the first member of the raiding party to enter the house, testified that he did not see or hear any activity inside the home as the officers approached the door.

Upon arriving at the door to Petitioner’s home, some of the


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officers shouted, “Police, search warrant.” The officers did not knock, and they waited only three to five seconds before opening the door and entering. Officer Good explained that the brief delay between the announcement and his entry was “[a]bout how long it took me to go in the door,” and he characterized the entry after the announcement as “[r]eal fast.” Officer Good confirmed that the officers did not wait to see if anyone would answer the door.

Challenge

List three characteristics you would like the Court to associate with one of your clients or adversaries. Then write down a specific fact that evokes each characteristic without relying on adjectives, adverbs, or editorial commentary.

1.

2.

3.

Endnotes

1 Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2d ed. 2003).

2 Richard A. Posner, Convincing a Federal Court of Appeals, 25 Litig. 3, 3 (Winter 1999).


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3 Robert J. Kapelke, Some Random Thoughts on Brief Writing, 32 Colo. Law. 29, 29 (2003).

4 Alex Kozinski, The Wrong Stuff, 1992 BYU L. Rev. 325, 329.5 Clyde H. Hamilton, Effective Appellate Brief Writing, 50 S.C. L. Rev. 581

(1999).6 Interview by Bryan A. Garner with John G. Roberts, Chief Justice of

the United States, Washington, DC (2006–2007), available at http://lawprose.org/interviews/supreme- court.php


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Notes


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