Example 3.9
Takeaway point 3.9: Explain unfamiliar terms and concepts to (i) avoid confusing readers and (ii) frame those new ideas in a way that favors your client.
Facts sometimes need to introduce the reader to unfamiliar information, such as a doctrine, a device, or some other complicated object or idea.
This principle is especially important when a case involves obscure or complicated issues such as patents, technology, or financial instruments. And even when readers think that they know what a term means, they might not know important details about it. While lawyers err when they heap endless details on readers, they also miss an opportunity when they fail to explain an unfamiliar term or to reveal subtleties about terms that readers think they know. The following example demonstrates how to describe technology that readers think they know in a way that advances a client’s interests.The passage arose from a case in which the government, without a valid warrant, used a GPS device to track all movements of a suspected drug dealer’s Jeep for almost a month, resulting in the suspect’s conviction.
Source: Brief of Jones, whose car was monitored by GPS, from United States v. Jones, 132 S. Ct. 945 (2012).
Good lawyers use citations to support not only the point that precedes the citation but also their larger message. Does this brief succeed with this strategy? Beautifully. The brief is arguing that the government must obtain a warrant before tracking suspects with GPS devices. And Hutchins’s article concludes that “the unfettered use of such surveillance [GPS] is inimical to fundamental Fourth Amendment principles. The most defensible treatment of GPS tracking under the existing analytical framework is that it is a search and, as such, must be preauthorized by a warrant issued only upon probable cause.” 55 UCLA L. Rev.
This passage makes great use of quotations to explain a technical concept. It doesn’t explain the term “trilateration,” but readers don’t need to know that phrase; therefore, using the term hints that the lawyers have become experts in this area. If readers need to understand a term, however, you must explain it to them.
Once again, this citation serves multiple roles. It supports the preceding proposition. The title primes readers to think about how GPS devices can undermine personal privacy. And the article favors Jones’s position, noting that GPS monitoring “enables various privacy abuses.” Think carefully about what you cite; here, if the lawyers were citing this piece for its legal conclusions, the article would be inapposite because the authors are Australian. But the authors’ citizenship is irrelevant given that the piece is being cited for a fact and, to a lesser extent, for its conclusions about the policy implications (rather than the legal validity) of using GPS devices to monitor suspects.
These factual points hint at an Orwellian monitoring of citizens: of the government knowing, within millimeters, where people are. The brief later argued that the policy implications of warrantless GPS tracking are Big Brotherish, and the final sentence in the reprinted passage tees up that argument with the ominous prediction that the technology (which is already eerily accurate) could improve further.