Example 1.1
Takeaway point 1.1: Judges want to feel just; making your client the “good guy” or the victim will let your client benefit from that inclination.
Your Statement of Facts should do more than summarize what sparked a lawsuit.
It should make readers want your client to win. We see below a common way to advance this goal: depict your client as a likeable victim. In the following case, a city in Connecticut wanted to “take” a number of homes through the power of eminent domain, but nine homeowners opposed the city’s efforts. They argued that the government’s plan — to transfer the land to a drug manufacturer — did not qualify as a “public use” (as required by the U.S. Constitution’s Takings Clause) because the property would be conveyed to another private party. Here, we meet the homeowners.Source: Homeowners’ brief in Kelo v. City of New London, 545 U.S. 469 (2005) (citations removed).
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This is a marvelous first sentence. We learn that New London is trying to seize the birth home of an octogenarian, making readers sympathetic to her.
This sentence reinforces the subjective value of Mrs. Dery’s home: her family has maintained ties to this neighborhood since it first arrived in the country. Both the majority and dissenting opinions discussed the family’s enduring connection to the neighborhood.
If the lawyers had not mentioned Mr. Dery, readers might worry about Mrs. Dery more: this sentence thus reflects the difficult narrative choices that lawyers must make. It taps into one powerful meme (“the lovely elderly couple”) rather than an even stronger one (“an old lady with nowhere else to go and no one to help her”). Tapping into these preconceptions and preferences (without being obvious) is an important part of how lawyers win cases.
This sentence shows that the home is unique not only because of the Derys’ lengthy connection to it, but also because the Derys wouldn’t live next door to their son and grandson if they moved.
Kelo’s name appears in the case’s caption — Kelo v. City of New London — but this is the first time we hear about her. The lawyers wisely decide to lead the brief’s Statement with the Derys, concluding (correctly) that their story is more compelling.
This date (1997) may seem irrelevant. Not so. Adding it prevents the other side from attacking the lawyers’ credibility. New London authorized its redevelopment project in January 1998 — just months after Kelo bought her home. Disclosing the date prevents the government from making Kelo’s lawyers look dishonest by pointing out that Kelo bought her home after the city had announced that this neighborhood’s homes might be seized. The homeowners’ lawyers camouflage this bad fact, in the middle of a sentence, without any self-consciousness or defensiveness.
WARNING! The brief lists details that are designed to convey that Kelo has a special connection to her property, but the list is not especially compelling. A stronger pre-trial declaration from Kelo would have helped years later at the nation’s highest court.