Example 3.8
Takeaway point 3.8: Use extrinsic facts to show the scope of your client’s problem and to make subtle policy arguments.
Providing insightful or favorable facts that shine light on your dispute — even though they might not have arisen during your case — can help your client’s cause in various ways.
For instance, if you were seeking punitive damages in a race discrimination lawsuit, wouldn’t you want the judge to know that the same defendant had been found liable seventeen previous times for racial discrimination? Extrinsic facts can show that your client’s injury is part of a recurring pattern or that ruling against your client might have drastic implications. Below, we see an example of how to use extrinsic facts to help a client.We consult again a case in which a former Eritrean prison guard, Negusie, sought asylum in the United States. His claim was denied; an immigration court found that Negusie has persecuted prisoners. He countered that he was coerced into guarding those prisoners. Here, his lawyers — perhaps recognizing that “I was forced to be a war criminal” sounds implausible — use extrinsic facts to show that young people in war zones are routinely coerced into military service. The passage also implies that many deserters deserve asylum because they will be endangered if they return to their home countries.
Source: Negusie’s brief in Negusie v. Holder, 555 U.S. 511 (2009).
This sentence establishes that many people in many countries have been coerced in a similar way as Negusie. The lawyers bundle together various types of forced service to make the number of people involved as large as possible.
When possible, avoid block quotes: readers often skip them.
WARNING! These citations have language in them that is extremely helpful to Negusie, but the dense look of the paragraph makes it less likely that readers will absorb each point. Document design is an important feature of good advocacy. One recent book, Matthew Butterick’s Typography for Lawyers, offers heaps of valuable advice about fonts, layout, and other features of making your documents visually appealing to readers. See also, Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, 2 J. A.L.W.D. 108 (Fall 2004). As you’ll see, these lawyers use a common typographical trick (bullets) in the next paragraph, to make the information easier to scan.
During another part of the Statement, the brief showed that the problem of child-soldiers described on these two pages is also a problem in Eritrea. See Negusie Br. 12-13 (“The Eritrean government routinely ’round[ed] [up] young men and women for national service,’ and ’incarcerat[ed] and tortur[ed] family members of national service evaders.’”) (quoting a State Department report). When your client is likely to be perceived as unsavory or unusual or not credible, beginning with extrinsic facts deflects attention from your client and focuses instead on the broader problem. Negusie was not mentioned until thirteen pages into the brief.