Example 1.5
Takeaway point 1.5: When you represent the “bad guy,” blame someone else, show that your client acted reasonably, and rebuild your client’s credibility.
The examples we looked at so far involved an elderly homeowner, an alleged victim of copyright theft, a party alleging that a judge was crooked, and a wunderkind inventor.
But what do you do when your client is the presumptive bad guy? Some lawyers counterpunch, and others tell their client’s story in a neutral way to stanch the flames that the plaintiff has stoked. The following Example reflects both a “neutral” beginning and a novelistic writing style. The passage comes from a brief that reduced the client’s liability by $2 billion.In 1989, the oil tanker Exxon Valdez ran aground off the coast of Alaska, spilling oil into the Prince William Sound. Victims of the spill sued Exxon and won a jury award of $5 billion — 90 percent of which reflected punitive damages. Appellate courts eventually halved the award, and this brief convinced the Supreme Court to slash the punitive damages award again, by another 80 percent. Exxon argued that the punitive damages were excessive under both admiralty law and the Due Process Clause. In the following passage, Exxon sets up those substantive arguments by trying to show readers that the company was not grossly negligent, and the brief’s tone tries to sound measured and credible as it seeks to make a historic disaster sound like a puzzling mishap that isn’t attributable to Exxon.
Source: Exxon’s brief in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).
Notice that Exxon frontloads its main theory: its policies were violated, and two rogue employees botched their jobs.
The brief introduces quickly the worst fact in the case — to get it over with: lots of oil spilled. Exxon measures the spill in barrels rather than in gallons: “more than 10 million gallons” would sound worse and be more comprehensible, which would hurt Exxon. Use measurements that favor your client.
The brief used these facts to undermine the argument that Exxon was grossly negligent. The short sentences would make Ernest Hemingway proud. They force readers to absorb Exxon’s points, which suggest that Exxon’s ship was not captained recklessly.
The district court is cited for advantageous facts even though it pummeled Exxon: legal judo.
The paragraph advances the view that Hazelwood was a rogue actor who, rather than acting for Exxon, violated its rules. Exxon presents itself as the victim (of a mischievous captain): like defendant Facebook in Example 1.4, Exxon tries to avoid being the villain.
Lawyers rarely want to explore counterfactual situations, which tend to be abstract or unprovable. But here, Exxon doesn’t stop at showing that the captain failed to follow Exxon’s rules; it adds that the disaster would have been averted if the captain’s orders had been followed. Why does this matter? Hazelwood was a lapsed alcoholic and Exxon knew it. This fact is the strongest piece of evidence supporting punitive damages against Exxon (and Justice Breyer mentioned this fact in his dissent). But if Hazelwood’s orders would have steered the Valdez safely to port, then his addiction — and Exxon’s decision to hire him — didn’t cause the oil spill. Exxon’s brief thus seeks to calm the furor against it, which is a critical goal for an unpopular defendant.