Example 3.3

Takeaway point 3.3: Repair your clients’ credibility when their intentions or honesty are attacked.

When you or your clients are attacked, you need to counter the other side’s allegation, as YouTube did in Example 3.2.

Rhetoricians have known for thousands of years that ethos — the advocate’s character and believability — is a critical part of persuasion. If a listener (or reader) greets your arguments with skepticism because you are perceived as untrustworthy, you need to reestablish your credibility before your substantive arguments will be given a fair hearing. The following Example illustrates this principle, as it manages to recast a litigant’s controversial actions.

Exxon challenged a $2.5 billion punitive-damages award after its vessel spilled oil in Alaskan waters. The plaintiffs blasted Exxon on numerous grounds, including that it had knowingly hired a lapsed alcoholic, Joseph Hazelwood, to captain the ship. They alleged that Hazelwood’s recklessness and drunkenness caused the crash. Exxon’s decision to retain him was one of the cornerstones of the massive punitive damages award. But in the following excerpt, Exxon’s lawyers try to rebuild the company’s credibility, and they nearly achieve the unthinkable: making a multinational oil company seem more humane than the plaintiffs whose livelihoods were harmed by the spill.

Source: Exxon’s brief in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).

In general, avoid restating your adversaries’ allegations.

This point masterfully reframes the discussion. By focusing on the implications of its general employment policy, rather than on the specific decision to retain Hazelwood, Exxon sneaks a policy argument into its Statement of Facts (i.e., that Exxon’s policy promotes safety). This passage makes Exxon’s policy seem reasonable and defends the company’s credibility against allegations that it was reckless, greedy, and indifferent to the risk of harm to the wilderness. At the same time, Exxon resists the temptation to wax on about how much it cares for its employees; that might seem insincere, thus damaging its ethos rather than restoring it.

Exxon uses a variety of techniques in this passage, such as incorporating the procedural history as a source of advocacy (see Chapter 2) and using legal authorities in a Statement of Facts (see Examples 3.4 and 3.5).

The plaintiffs who were harmed by the oil spill challenged Exxon’s story, reflecting that the party that wins the trial needs to defend aggressively the trial court’s findings when the other side attempts to retry the case on appeal. Here is how the plaintiffs responded to this brief:

Exxon’s suggestion that Hazelwood was not drunk illustrates just how brazenly its Statement of the Case ignores the detailed decisions below and how severely Exxon slants the record. The jury heard testimony about Hazelwood’s drinking on March 23 from crew members who drank with him, bartenders, another customer, and Hazelwood himself.

Did Exxon overreach? No. It presented information truthfully: just as Exxon claimed, the plaintiffs “argued” and “asserted” the above information and “Exxon’s evidence showed” otherwise. And, as its brief also notes, the district court told the jury not to address these specific issues. Exxon is litigating aggressively and truthfully. A longer excerpt of the plaintiff’s counterstatement appears in Example 15.1.

The example yet again blends the techniques discussed in this chapter and Chapter 2, citing both the district court’s helpful conclusions and a separate criminal case involving Hazelwood. While these techniques have independent value, Exxon is deploying them for the goal described in this section: to win a credibility battle by convincing readers that hiring Hazelwood was neither reckless nor the actual cause of the oil spill.

Exxon now tries to win a credibility battle about whether Hazelwood was actually drunk when the crash occurred. Exxon does not need to prevail on this point to win the lawsuit, which is why this detail was demoted to a footnote. Even so, Exxon accurately concludes that it would look less culpable if Hazelwood was sober, so it introduces the evidence to support that conclusion. The reference to “unrelated parties alike” reflects another subtle attempt to build credibility: third parties corroborated that Hazelwood seemed sober on the night of the accident.