Example 4.2

Takeaway point 4.2: Cite and quote key cases, but also explain and emphasize the salient facts and relevant principles from those cases.

Resist the urge to cite your key supporting cases without any discussion or to dump quotes from them into your brief.

We look next at football and cheating. In 2007, a young assistant for the New England Patriots was caught videotaping a rival’s defensive coaches during a football game. Videotaping allows one team to “steal” the other team’s plans and thus gives it an advantage. The NFL traced the orders to videotape the game to the Patriots’ head coach, Bill Belichick, who eventually admitted that he had taped NFL games since 2000. The NFL punished Belichick and his team for violating the league’s rules. A New York Jets fan (and season ticket holder) sued Belichick, the Patriots, and the NFL, claiming that because the quality of the Patriots-Jets game was compromised by cheating, all of the Jets’ season ticket holders had been wronged in various ways that warranted damages. After prevailing on a motion to dismiss, the NFL here tries to convince the Third Circuit to affirm the dismissal.

Source: NFL’s brief from Mayer v. Belichick, 605 F.3d 223 (3d Cir. 2010) (some case citations omitted).

This topic sentence foretells the argument that will follow. For more advice on topic sentences, see Chapter 16, Tip 4, and Appendix B. The topic sentence in the next paragraph substantiates the claims in this paragraph. The lawyers split this CRAC discussion into several paragraphs to make the passage readable.

The brief hints that it will cite multiple cases. And it did — six others. This exemplar, however, focuses only on the case that the brief discussed most extensively.

This New York State case is not controlling on the Third Circuit. So what? The brief emphasizes the prior case’s similar facts and sensible reasoning to make readers want to follow that case. This approach reflects what Chief Judge Richard Posner (7th Cir.) meant when he advised lawyers to use case law “not as a club with which to beat your opponent to death, but as a source of policies to guide decision.”

The discussion emphasizes the ways in which the prior case mirrors the lawsuit against Coach Belichick and the other football defendants.

The discussion ends with a snappy quote that sticks with readers and that captures the defendants’ theme. Themes are discussed more extensively in Chapter 13.

The brief alerts readers that it is about to apply the Castillo case to the pending lawsuit. Or, in the language of CRAC, the brief is moving from Rule to Application.

The brief tells readers what it just proved: the final “C” or Conclusion in CRAC.