Example 4.7
Takeaway point 4.7: Remember to hunt for statutes and regulations that help your client; citing only cases weakens your client’s prospects.
Most of the examples in this chapter rely on cases, but don’t forget to search for additional authorities (such as statutes, regulations, rules, and treatises) that support your client’s position.
Law school focuses on cases, so much so that some students graduate without even reading a statute or regulation. But the words of statutes and regulations can be priceless because they are rigid — and thus harder for your adversary to counter than dicta or an amorphous holding. Great advocacy requires you to weave together a variety of helpful authorities.In the next excerpt, a record company sued a student for copyright infringement after he illegally downloaded thirty songs. The company won, and the trial court ordered the student to pay $67,500. He challenged the decision, alleging that the copyright law’s massive penalties violated his due process rights. Here, the record company contests the student’s claim and focuses on the relevant statute, 17 U.S.C. § 504. The excerpt below demonstrates a number of techniques discussed thus far in this chapter, and it also shows how to use statutes to persuade judges.
Source: Respondent’s Opposition to a Petition for a Writ of Certiorari to challenge Tenenbaum v. Sony BMG Music Entertainment, 660 F.3d 487 (1st Cir. 2011).
In every court, lawyers need to decide whether to use a party’s actual name, some modified version of its name (to achieve a semantic goal), or its procedural name. Names like “plaintiff,” “movant,” “indemnitor,” “petitioner,” “appellee,” and “defendant-cross-claim-ant” are harder for readers to keep straight.
The language in this sentence is formal: “for naught,” “forecloses,” “purview.” This sort of style is fine in some courts (including the Supreme Court, where this brief was filed). But in general, keep your language simpler.
Rather than beginning with a case — as a student might — the lawyers bludgeon their adversary with statutory commands. The doctrine comes later and is used to confirm that the statute means what the lawyers claim it means.
This separate subsection of the statute — 504(c) rather than 504(a) — addresses the second of the student’s arguments (i.e., that his conduct was “uninjurious”).
Notice that the words of a statute matter rather than the principles. Thus, while lawyers can (and are often wise to) quote a case or to explain the legislative goals of a statute, they need to quote statutes to compel a court. Paraphrasing a case can be helpful; less so with a statute.
This phrase (“turn on its head”) is overused — one of law’s many tired tropes. Avoid cliches and hunt for fresh phrases. But these phrases are handy, if imperfect, crutches when you are writing under a tight deadline.