Example 5.1
Takeaway point 5.1: Explain what happened in your adversary’s best cases and then provide clear, trenchant reasons that these cases should not apply to your dispute.
We begin our exploration of how to counter the other side’s arguments by looking at how to distinguish adverse authorities.
Distinguishing is different from diminishing. The former seeks to show that a precedent is inapplicable; the latter seeks to show that a precedent should not be applied. The former is like dodging a boxer’s punch; the latter involves shrugging it off. Lawyers use both techniques to undermine adverse authorities, but distinguishing is more common, especially when seeking to escape the influence of a harmful controlling authority.We return to the Facebook dispute. Facebook sought to preserve a settlement that its opponents (the “CU Founders”) wanted to void. The CU Founders argued that the settlement was not binding because it specified that Facebook would finalize the agreement later. Facebook countered that the settlement agreement was final and binding, even though the parties still needed to resolve some details (because those details were minor and because the agreement gave Facebook the power to resolve those details). As you will see in the first paragraph below, the description of the adverse case’s facts is a bit hard to follow, but Facebook then does a great job distinguishing the case in the second paragraph.
Source: Facebook’s brief in Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034 (9th Cir. 2011).
This technique — pointing out that the other side lacks abundant authorities — is common. While it is better to have one great case than fifty marginal ones, the number of authorities can signal to a court whether a legal argument is novel or well established.
These are cases that Facebook had discussed earlier: it first showed why its position is correct. Then it dealt with the other side’s argument. Follow this approach, which this book refers to as the “affirmative to negative” principle, meaning that you should generally advance your argument before you respond to (or anticipate) the other side’s objections.
The brief omits a critical detail: why the appellate court reversed. The discussion would be more helpful to readers if it explained the appellate court’s reasoning. But the lawyers also want to avoid giving too much air time to the other side’s best case.
We learn immediately what this paragraph will establish. This sort of clear topic sentence is exemplary, but many lawyers like to be subtler when they are distinguishing cases, preferring to distinguish without using the word “distinguish.” The brief distinguishes Terry based on the factual difference between the two cases.
Earlier in the brief, Facebook explained that the settlement said that Facebook could finalize the deal in whatever form it wanted.
This point is Facebook’s best one — and is the main reason that this book reprints part of Facebook’s brief. As shown here, a single detail can undermine the other side’s main authorities; the best way to distinguish a case is usually by making one or two sharp strikes rather than by pointing out a heap of ticky-tack differences.
This paragraph basically makes a policy argument (see Chapter 9, which shows more examples of policy arguments). But it does so to further the discussion about why Terry should not govern this case: namely, parties need to be able to end their lawsuits without hammering out every conceivable detail in the settlement agreement. Having distinguished Terry, Facebook now diminishes its allure.
This phrase reflects a catchy use of alliteration. The authors presume that readers are familiar with JAMS, which is one of the nation’s preeminent organizations of mediators.