Example 1.3
Takeaway point 1.3: Emphasize your best facts, even if you need to repeat them. Better yet, use variations of these facts so that your statement doesn’t seem repetitive.
Judges dislike it when lawyers repeat themselves.
But for the key facts in your case, do it anyway. Repetition emphasizes the point, ensures that readers won’t miss it, and helps readers to realize that a fact is important. The next passage arose after a jury in West Virginia awarded $50 million to plaintiffs in a lawsuit against a coal company. The coal company’s CEO, Don Blankenship, then contributed significantly to the campaign of a state supreme court justice. That candidate, Brent Benjamin, won the seat and then joined the court’s majority in a 3-2 decision that overturned the $50 million verdict. The jilted plaintiffs asked the U.S. Supreme Court to force Benjamin to recuse himself, arguing that the Due Process Clause of the Fourteenth Amendment so required (given Benjamin’s indebtedness to Blankenship). Here, the brief chronicles Blankenship’s donations to Benjamin’s campaign, painting an image of a conflict of interest that the Supreme Court ultimately labeled “extreme.”The brief demanding that Justice Benjamin recuse himself, from, 556 U.S. 868 (2009) (some citations omitted).
Within one sentence, the brief has caused readers to raise their eyebrows. Why would Blankenship spend so much of his own money unless he was getting a good return on his investment? In this Example, Caperton’s lawyers mention the $3 million figure (and variations of it) four times. They ensure that readers spot this fact.
The brief undermines Blankenship’s credibility by quoting nasty political ads that seem disconnected from his presumptive concerns.
The brief details Blankenship’s fundraising tactics — which once again seem unrelated to his presumptive concerns — to insinuate a broader scheme to plant a friendly vote on the West Virginia court.
The case turns not just on the existence of a conflict of interest, but also on the appearance of one. Rather than assert “this smells fishy,” the brief lets the New York Times and National Public Radio make this point. Attacks on an opponent’s motives or credibility are most effective when you quote either your opponent or a neutral party.
We see again that third parties can say helpful things that litigants cannot. A court would gasp if the lawyers themselves alleged that Massey Coal “was out to buy itself a judge” and that this case involved “vote buying.” But the lawyers impugn the other side through a third party’s words.
Use footnotes sparingly but powerfully, as with footnote 1 in Caperton’s brief. Instead of stating that Blankenship’s donation was wildly out of proportion to normal state election contributions, the footnote simply lists the four political juggernauts that gave more money that year, thus allowing readers to conclude for themselves that the size of Blankenship’s expenditures was suspicious.