Example 1.6

Takeaway point 1.6: A formal tone gains credibility.

Adapt your story’s tone based on your client and the type of dispute. A trendy company like Facebook might benefit from a playful-sounding brief, while a client such as Exxon would not.

In the following dispute, the government sought to reinstate the conviction of an al Qaeda operative, Ahmed Ressam, who was caught smuggling bomb components into the United States. He had planned to use the materials to kill travelers at Los Angeles International Airport. The legal issue related to a single word — “during” — in a federal criminal statute that criminalized “carr[ying] an explosive during the commission of any felony.” The Ninth Circuit vacated Ressam’s conviction, holding that “during” required the government to show that the explosives were related to Ressam’s underlying felony, which was lying to a customs official when he tried to enter the United States. This brief convinced the Supreme Court to reverse.

Source: The U.S. government’s brief in United States v. Ressam, 553 U.S. 272 (2008).

This sentence shows both that the respondent had a history of crossing borders with falsified documents — which is the underlying felony with which he was charged — and of violent terrorist training, which is the danger that (the brief hints) should lead the Court to lock up Ressam for a long time.

WARNING! The brief has listed two consecutive dates. On the one hand, these details are precise. Courts might use this information in an opinion. But listing consecutive dates taxes readers by forcing them to absorb numbers without necessarily grasping why that information is relevant. Relative dates, such as “four weeks later” or “the next month”, are easier for readers to absorb. But there’s more. The dates do matter here. The first date (November 17) shows that Ressam lurked in a sleepy town for a month; this plotting makes him seem more sinister — a professional terrorist. And the second date (December 14) shows that he entered the country with plenty of time to get to Los Angeles and scout the airport that he planned to target during the holidays.

The details about where the bomb components were hidden (“in the Chrysler’s spare tire”) and what Ressam hid enables readers to visualize what is occurring. These details make it sound like Ressam was capable of detonating a major bomb, making readers want to lock him up.

Avoid jargon. The word “by” would have been a better choice here than “via.”

This detail might seem irrelevant, but it suggests, without saying so, that Ressam tried to slip into the United States through a sleepy, vulnerable border town.

The respondent’s agitation demonstrates why the customs inspector became suspicious. This detail is probably designed to preempt and quiet, subtly, any potential concerns that the customs official lacked a valid basis to search Ressam or that Ressam was searched because of racial profiling.

The lawyers describe how the respondent’s false statement was immediately followed by the inspector’s discovery of the explosives, thereby highlighting the temporal element needed to trigger § 844(h)(2) — he was carrying explosives “during” the time that he made his illegal false statements to the customs official. Again, we see that good lawyers link the facts to their legal position.

Notice how lawyers use passive verbs in this sentence to emphasize the nouns that matter most — the car, the explosives — rather than who conducted the search, which is irrelevant here. Avoid using passive constructions unless a passive verb will help you.

The lawyers include this sentence to demonstrate the potential attack’s severity and timing (during Christmas). The brief mentions earlier that Ressam was targeting Los Angeles’s airport (and introduced the abbreviation “LAX”) so this sentence reminds readers that Ressam planned to target a major airport.