Example 1.4

Takeaway point 1.4: Provide readers with basic information about the dispute — who did what to whom and when, and why it matters. This tip is especially important for nondispositive trial motions (because judges will often be unable to tell how tangential issues fit into the overall case).

This example shows that legal writing need not be stiff and formal. While you might never write this playfully, develop your own style and don’t feel that you need to write dry prose. This brief also manages to advance a morality tale between a hero and some villains. In addition to advancing your argument, framing the story in a way that glorifies your clients improves the chances that they will hire you again; by contrast, a defense built on a client’s stupidity or ignorance can lead to client-relations difficulties.

In this case, several plaintiffs sued Facebook, and they settled their claims in exchange for Facebook stock. Then, however, they sought to cancel the settlement agreement, alleging that Facebook tricked them into settling by overstating the value of its stock. Below, Facebook’s colorful brief introduces the parties and the dispute: the who, what, where, when, how, and why of the controversy.

Source: Facebook’s brief in Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034 (9th Cir. 2011).

In a single sentence, the authors frame their client as the good guy (a genius who built a “transformative business”), while the rivals are failures seeking to pilfer profits that they don’t deserve. The line also feels brisk and engaging, resembling a Hollywood movie pitch. And that’s not an accident: the word “plotline” alludes to the then-forthcoming movie The Social Network, which discusses this lawsuit extensively.

This sentence gives us some of the who, what, and when of the lawsuit. The rest of the Example supplements this information.

Earlier, we saw briefs that cited a joint appendix (JA), which is familiar to most attorneys; the Ninth Circuit, however, requires appellants to file an Excerpts of Record. The “ER” refers to the materials that the appellant prepares for the court; the “SER” refers to Supplemental Excerpts of Record, which the appellee prepares and which comprises materials that the appellee wants to use but that the appellant omitted from the ER. The difference between JAs and ERs shows that court rules can vary from one jurisdiction to another. You must check your local court rules.

A good verb can bring a sentence to life. The verb “steered,” which alludes to unspecified hazards that Zuckerberg had to dodge, is more powerful than possible substitutes. See Appendix C (listing short verbs). Likewise, the verb “imagined” (which appears later in this Example) swipes at the other side’s failure to take concrete steps to build their company.

Within three words we know what this paragraph will be about: the bad guys. Try to help readers identify instantly what a paragraph will discuss, whether a party, a stage in the dispute, or facts that relate to some legal issue.

The word “after” plays an important role: it informs readers that the wunderkind started his business before the rivals, making it seem like, if any theft occurred, the rivals stole his idea.

Using the word “they” to begin four consecutive sentences (a form of repetition known in rhetoric as “anaphora”) would be more effective if hammering home related points; it is less so here when the four sentences relate to different topics.

WARNING! Ideally, there should be a citation here; if the lawyers had an admission from the other side, they might quote the material or clarify who conceded this point. Alternatively, they should cite their own side’s unrebutted testimony on this point. Evidence — even if it is uncontested — needs to be introduced into the trial court record to help on appeal. Facebook got lucky; it managed to sneak this in. Also, be wary of using absolutes like “always” or “never.”

Notice that this verb is ambiguous: did the court formally dismiss their claims or, more colloquially, find their claim undeserving of attention? Watch out for ambiguity — unless it helps you.

This quote is brilliant. Substantively, it shows that the plaintiffs tried to rip off Facebook’s idea (which is the very thing that they allege that Facebook’s founder did to them). And stylistically, placing the words after a colon forces readers to focus on the quote.

“Worse yet” is an excellent “signpost”; this beginning of the sentence tells readers what is coming and grabs their attention.

We see again how effective short and engaging words can be: “scrapped,” “bounty,” “hack,” “spammed,” and “luring.”