Example 4.4

Takeaway point 4.4: Synthesize doctrines to help judges see what a line of cases is really about.

Quoting an authority is more effective when you also crystallize what that authority sought to do.

This case involves a telecommunications company. When a phone call is placed from or to a landline telephone, the call passes through a local phone network. The local network’s owner could refuse to connect the calls of other companies’ customers, thereby monopolizing that calling area. Congress decided to prevent this potential conduct by requiring phone companies to lease access to their networks so that competitors could offer landline service. Verizon thus leased access to its network to AT&T, but a class of AT&T customers in New York City sued Verizon, alleging that it deliberately provided poor service to AT&T customers. The class claimed that this behavior violated § 2 of the Sherman Act — an antitrust law that prohibits acquiring or maintaining monopolies through anticompetitive conduct. The class sought to force Verizon to sell some of its network to competitors. While the Second Circuit agreed with the plaintiffs, the following brief persuaded the Supreme Court to reverse.

Source: Brief for Petitioner-Verizon from Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004).

This passage does an exemplary job of explaining the principles embedded in a line of cases. Rather than simply quoting cases or holdings, it synthesizes a century’s worth of jurisprudence into a few paragraphs.

This is a common tactic: when you have old cases, you want to present them as part of a glorious and consistent tradition. When old cases disfavor your client, you want to diminish their value by dismissing them as outdated.

Notice how the footnotes use short, effective parentheticals both to explain the law and to support Verizon’s legal position. Many lawyers strive to avoid footnotes. However, when you footnote multiple authorities in a string cite, it keeps your textual passages uncluttered. Some writing specialists recommend placing most citations in footnotes. I strongly disfavor this approach because many readers like and expect citations in their text so that they can weigh the quality of a brief’s authorities without plunging to the bottom of the page. But no answer is objectively right. Follow the custom that prevails in your office and in your court. If there is no custom, try to avoid footnotes.

This paragraph shows one way to flow into a new point. As you see in footnote 13, several intermediate federal courts (and Justice Breyer) had concluded that antitrust law distinguishes between affirmative and negative duties. But the Supreme Court had not done so yet. Thus, the lawyers looked to analogous cases and situations to show that the affirmative-negative distinction has (i) been used by the Supreme Court previously and (ii) provided a useful (and, indeed, “fundamental”) way of interpreting laws. Reasoning by analogy is a critical part of effective advocacy: when you want a court to accept a novel proposition, show that it is not actually novel — by illustrating that the proposition has been embraced in other, similar contexts.