Example 2.3
Takeaway point 2.3: Atmospheric details about the procedural history can advance your client’s main argument.
Let’s look at another example in which a brief undermines lower courts’ reasoning.
Here we revisit Exxon’s attempt to convince the Supreme Court to reduce a $2.5 billion punitive damages award after Exxon’s tanker spilled oil in waters near Alaska. This passage also exemplifies how to use atmospheric facts from the case’s history to advance your client’s substantive arguments. Exxon explained earlier in the brief that the trial court hammered Exxon with a $5 billion punitive damages award. We learn below what the appellate courts did. Two details may help to illuminate this discussion. First, the State Farm case (discussed below) capped punitive damages; the more reprehensible a defendant’s conduct, the higher the acceptable ratio between the punitive damages and the actual damages. Second, in most courts, a ship’s owner is not liable for the torts committed by the ship’s captain.Source: Exxon’s brief in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (record citations omitted).
Lawyers can (and often do) use a separate subheading for each stage of the procedural history.
Rather than simply saying “Exxon lost,” the lawyers mine the appellate opinion for dicta and factual conclusions that help Exxon.
This is subtle, brilliant advocacy: the plaintiffs-petitioners alleged “Exxon Irretrievably Waived Its [Clean Water Act] Argument.” By mentioning the CWA right away in its procedural section, Exxon plants the idea that the CWA issue has been fiercely litigated throughout the lawsuit.
The court’s conclusions give Exxon a chance to parade helpful facts as procedural history.
Notice again that, just as in Example 2.2, the lawyers try to make the court in which they lost look feckless, fickle, and biased, but they assiduously refrain from insulting the court or the individual judges. They let the facts register their complaints about how the Ninth Circuit handled the case. They also smuggle in helpful facts yet again.
Rather than celebrating that “the court therefore cut the award in half,” Exxon complains here, presenting a decision that reduced its liability by $2 billion as a defeat. Exxon then sneaks in a citation to show that the punitive damages award was massive and historic, even after it was reduced. Each court picked a different amount to punish Exxon: $5 billion, $4 billion, $4.5 billion, and $2.5 billion. This variability makes the award seem arbitrary, which is a valuable atmospheric fact for Exxon.
Exxon highlights the lower court’s misreading of a case and its self-repudiation to undermine that court’s credibility. This “atmospheric” fact has little to do with the current dispute but makes Exxon look reliable about the law.