Example 3.2
Takeaway point 3.2: Use facts to undermine opposing counsel’s credibility
When the other side fires an ad hominem attack you, rebut it, but don’t dwell on it. Credibility battles, especially for a plaintiff, can derail the process of getting the court to focus on the reasons your client should win.
Simply counter the attack and move on. But when the other side has systematically stretched the truth, delve into one or two examples to make the court doubt everything that your adversary has written. The following example uses this technique, attacking opposing counsel (as opposed to the opposing party).The passage below comes from a filing prepared by YouTube, which was being sued for copyright infringement by foreign copyright holders. Here, YouTube responds to a motion in which the plaintiffs misquoted a document purportedly showing that executives at YouTube admitted that they knew that their website contained loads of unlicensed copyrighted material. This example shows that opposing lawyers will both (i) try to spin your client’s statements unfavorably and (ii) pummel you for any mistakes or overreaches. You’ll immediately notice that the style is acerbic, approaching the limit of how venomous a motion should be.
Source: YouTube’s opposition to plaintiffs’ motions for partial summary judgment in Football Ass’n Premier League Ltd v. YouTube, Inc., 633 F. Supp. 2d 159 (S.D.N.Y. 2009), affd in part and vacated in part, 676 F.3d 19 (2d Cir. 2012).
Some books suggest understatement here, such as “Viacom appears to have misquoted a critical YouTube document and to have thereby altered that document’s meaning.“ But that subtler approach is less effective at ensuring that judges remember that the other side distorted the document.
Presenting information in a visually appealing and absorbable way is important. It helps readers grasp your point, and it entices them to spend time on your argument. Don’t be shy about using tables, photographs, or other visual tools. See Example 6.6.
Keeping quotes short and snappy is a good goal, and you can certainly use ellipses or brackets. Viacom’s version of the quote, however, contains three bracketed phrases and three sets of ellipses. Performing aggressive rhinoplasty on a quotation exposes you to a heightened risk that the other side will point out mis-characterizations.
Viacom’s use of the word “perception” implies that YouTube is trying to feign a commitment to policing its content; in YouTube’s version, YouTube is actually committed to policing this content and wants to ensure that users perceive its position accurately. Opposing counsel will often distort what your clients have said. Clarify — concisely, but decisively — what your clients actually said (thus deterring opponents from chicanery).
YouTube’s lawyers undermine Viacom’s credibility by exposing how selectively Viacom has quoted the email. That said, judges may resent the implicit suggestion that YouTube expects them to read and compare two block quotes.
Rather than trust judges to juxtapose the two quotations, YouTube summarizes how Viacom mis- characterized its document. This is a textbook move in a credibility battle. YouTube manages to show not only that Viacom mischaracterized the document but also that it drew an overbroad inference based on this inaccurate quote. YouTube helps its cause by making its points in short, sharp sentences.
You will seem defensive if you deny every allegation, including valid ones. Thus, if you or your client get “accused” of something innocuous, legal, reasonable, or justified, point out that the allegation, even if true, is toothless. YouTube demonstrates this tactic here.