Example 2.1

Takeaway point 2.1:Explain the key procedural developments in your case in a way that helps your client while also helping the court to see what happened. Treat procedural history, in other words, just like the rest of your Statement of Facts.

The resolution of some cases depends on the posture. In those cases, the procedural history serves not merely an informative function, but goes to the heart of the dispute. Lawyers need to explain what the lower court did and what relevant decisions the lower court issued.

To see this technique, we return to the case in which Don Blankenship, the CEO of a coal company, spent millions of dollars to elect a justice in West Virginia. The plaintiffs (i.e., petitioners) argue that the Due Process Clause requires that Justice Benjamin recuse himself from the case.

Source: The brief challenging Justice Benjamin’s failure to recuse himself, from Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

This brief numbers the various subsections of the Statement of Facts. This “numbering” approach is common at the Supreme Court. In most courts, however, lawyers use subheadings to signal that a new phase of the case is about to be discussed. The first three parts of the brief provided background about Justice Benjamin’s indebtedness to Blankenship. The fourth part described petitioners’ initial motion to recuse Justice Benjamin, which was denied.

Notice the beautiful subtlety here: litigants have the right to an appeal, but a “petition for review” means that the appellate court gets to decide whether to hear a case. Thus, the very fact that the West Virginia court agreed to hear this case could hint that Massey received favorable treatment from the court.

By including the vote count, the brief shows that Justice Benjamin’s vote dictated the outcome.

Once again, the lawyers’ mastery of the procedural details advances the clients’ cause. The appellate court “dismissed the case with prejudice,” thus preventing the case from being retried on remand. The resolution of the case hints that the West Virginia court was trying to end the case.

The brief quotes the West Virginia court itself to suggest that its opinion clashed with the evidence. Again, the subtle implication is that bias produced that result. Each of the subtle procedural details merely nudges readers; the brief does not overstate the relevance of any single detail.

The brief specifies that Benjamin cast one of the three votes that reversed the verdict. Less skilled lawyers would stop here. But these lawyers know that they bolster their case if they can show that the West Virginia court’s opinion was dubious, which the brief demonstrates in the following paragraph.

The brief makes the court’s opinion seem radical by stating that it created many new points of law. The implication, once again, is that impartial judges wouldn’t have reached this result. Some readers will think that this phrase overreaches and that this sentence is too long. But I applaud it: it renders the balance of the sentence (which summarizes unfavorable facts) irrelevant and forgettable.

The majority’s reasoning sounds preposterous. Characterizing the lower court’s reasoning this way makes readers skeptical of both the court’s integrity and its reasoning. And that ultimately caused the Supreme Court to scrutinize what the state court did and to require Justice Benjamin to recuse himself. The lawyers decided not to describe exactly who these parties (Sovereign, Harman, and Wellmore) were; readers might be curious, but the lawyers elected not to enter a detailed battle about whether the West Virginia court’s reasoning was valid. They chose brevity.

A strong dissenting opinion is a great ally on appeal. This brief exemplifies how dissents and concurrences can provide succor to your client.

Before petitioning the Supreme Court to hear a case, litigants must exhaust their other options. Thus, they often need either to ask federal appellate courts to hear cases en banc or to petition state supreme courts to rehear the case. This topic sentence signals a new stage in the case and also assuages the Justices’ concern that the litigants might have failed to take all of the steps necessary to launch a challenge at the Supreme Court.

Here, the brief uses the old guilt-by-association trick. Two justices voted with Justice Benjamin, and the brief gives us no reason to doubt their integrity. Readers might thus suspect that Massey’s arguments have merit. The colorful facts in this paragraph seem irrelevant to the legal issue because the case is about Justice Benjamin’s failure to recuse himself, not about Chief Justice Maynard. But in a single sentence, the brief makes the Supreme Court of Appeals of West Virginia appear like a den of corruption — and makes readers want to do something about it.