Example 2.2

Takeaway point 2.2 Emphasize the helpful rulings, findings, and evidence that appeared earlier in your case even if you lost.

Good lawyers weaponize the procedural history of their cases, even when the dispute does not revolve around the procedural posture.

In this case, police stopped a motorist named Albert Florence and found an outstanding bench warrant for his arrest. The warrant reflected a recordkeeping error; Florence had paid the ticket several years earlier. He was nevertheless arrested. As a result, he was processed through two prison facilities and was subjected at each prison to searches that included undressing, delousing, and a strip search. Florence filed a lawsuit for monetary damages against the state police, alleging that the searches were unconstitutional and unreasonable. The district court granted summary judgment for him, holding that unless there is reasonable suspicion, “strip-searching” someone who is not indictable violates the Fourth Amendment. On appeal, the Third Circuit reversed — a win for the prison. Here, the prison’s lawyers tell the Supreme Court what the district court did. As you will see, the description of these procedural facts is hardly meek or neutral.

Source: Brief for the prison system in Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012).

A “counterstatement” is the appellee’s (or nonmovant’s or respondent’s) stand-alone version of facts, which should retell the dispute in a way that favors that litigant. Throughout this passage, the lawyers restrict their attacks to the trial court’s reasoning, not to the court itself.

That this case was decided against the prison on summary judgment means that the prison’s facts must be accepted as true (because that legal standard governs the disposition of a summary judgment motion). When the standard of review favors your client, emphasize it.

This sentence seems like it is describing the posture. Hardly. It is using a procedural fact to suggest that the prison should be allowed to “uncover gang activity and potential health problems,” without judicial babysitting, as it deems appropriate. The procedural history advances the first of several policy arguments.

The “posture” walks through each of the prison’s arguments — thus, for all practical purposes, the posture is an argument. But the discussion sticks to facts by stating that it argued something rather than by simply repeating the argument.

The Supreme Court itself previously credited the expert’s work, which helps to establish the expert’s credibility. Moreover, the brief concisely repeats the expert’s arguments, converting this “factual” discussion into a powerful piece of advocacy that raises another policy argument.

This detail is very helpful to the prison (because it explains why arrestees like Florence need to be searched).

As we’ll see again in the next chapter, sophisticated lawyers smuggle case law into their facts. How? By making it a fact! This quote rests on the word “acknowledging”: that word allows the prison to include favorable case law (because the district court mentioned it). As Comment D above mentions, stating that the court or some other party said something qualifies as a fact, even if that statement happens to contain an argument. There’s a second benefit from including this case citation: showing that the trial judge disregarded the Supreme Court’s opinion paints the lower court as reckless, undermining its reasoning and making appellate judges more willing to second-guess its conclusions.