Example 3.1
Takeaway point 3.1: Use facts to undermine the opposing party’s credibility.
Credibility battles are common in briefs. Conventional wisdom says that lawyers should not target opposing counsel.
That advice is sound, to a point: judges often report that they dislike these tactics and that gratuitous or nasty attacks hurt both parties. But careful, targeted attacks on your adversary’s credibility might nevertheless work, just as negative advertising in political campaigns both irks and influences voters.There are two primary ways of attacking an adversary’s credibility: proactively (as an ad hominem attack) or reactively (when an adversary overreaches). You should not lightly decide to target your adversary or its lawyers. But if the other side has behaved in some improper way, you should at least consider whether to emphasize that misconduct.
Source: AT&T Mobility’s brief from Selby v. AT&T Mobility LLC (Cal. App. 4th Dist. May 9, 2012).
The attack on the plaintiff (and, implicitly, on the lawyers who use her as their pawn) begins immediately — in the first two words of the brief’s Statement of Facts. Even though Ball is no longer the named plaintiff in this case, targeting her undermines the lawsuit itself and weakens the credibility of the lawyers who filed it. Footnote 1 shows that Ball is a "serial plaintiff.”
The first swipe at Ball is a mild one that relates to an actual legal issue: whether she has standing to sue.
The next swipe has little to do with substantive issues.
The Art of Comparing
One other advanced technique that lawyers often use in their Statements (or in their Arguments or Introductions) is to compare something unfamiliar to something familiar. You’ve experienced the power of this phenomenon whenever someone tells you that a band sounds “like U2 with a reggae vibe” or that a cuisine is “like Thai, but spicier.” Without a reference point, the new object or idea can be hard to grasp. Explanatory comparisons—often metaphors—appear throughout the examples in this book.
Comparisons help us to process new information, but the best ones also stick, becoming a permanent part of how we perceive the new object. Some examples of effective comparisons include: beyond a shadow of a doubt; a penumbra of constitutional provisions; commerce is a stream; church and state are separated by a wall; states are the laboratory of democracy; there is a revolving door between regulators and regulated industries; money is speech; corporate veils are pierced; and the threat of punishment creates a chilling effect. The most subtle comparisons, or as Professor Linda Berger calls them, “the unnoticed ones that make the results seem natural,” are often the most potent.
Thus, the comparisons that irrevocably shape how we see complicated objects and ideas are often the most useful, as in these examples:
· During the late-2008 financial crisis, the bewildering financial instrument known as a “credit default swap” was described as “buying fire insurance on your neighbor’s house.”
· Famed investor Warren Buffett described corporate junk bonds (which yield high dividends but are very risky) as “weeds priced as flowers.”
· On the question of whether a tweak in a regulation was meant to overhaul a regulatory system, Justice Scalia observed that Congress does not “hide elephants in mouseholes.”
· Dissenting in a case that allowed the U.S.
military to intern American citizens during emergencies, Justice Jackson observed that the Court’s principle “lies about like a loaded weapon.”To maximize the punch of your comparisons, keep them short and sharp. The longer they run, the greater the likelihood that they will sputter.1 Politicians are great at snappy comparisons:
· President Franklin Delano Roosevelt urged Congress in 1941 to let him sell, lease, or lend weapons to allies in Europe by observing that if a neighbor’s home is on fire and he asks to borrow your garden house, “you lend the garden hose to your neighbor and he puts out the fire.”
· One political candidate referred to Governor Mitt Romney in 2012 as “a perfectly lubricated weather vane.”
· Another candidate referred to the “narcotic” of government spending.
· When running to become president, Ronald Reagan argued that the Republican Party needed to nominate a candidate of bold colors, not “pale pastels.”
· Before becoming president, Abraham Lincoln said about the growing rift between the North and the South, “a house divided against itself cannot stand.”
Metaphors can be either persuasive or explanatory or, best of all, both. Supreme Court nominee John Roberts achieved this double-barreled success when he commended judicial restraint during his Senate confirmation hearing; he observed that “judges are like umpires” whose job it is to “call balls and strikes and not to pitch or bat.” Use short, sharp similes, metaphors, and analogies to convey your points and explain key facts. Avoid prolonged allegories.