Example 5.2

Takeaway point 5.2: Take special pains to distinguish the other side’s best case, even if you need to dive into that case’s record or into academic commentary about that case.

We just looked at a brief that distinguished an adverse authority quickly and incisively.

In the following example, a woman in California grew marijuana for herself. She claimed that she was using it as medicine (which is legal under California law). But in 2002, federal Drug Enforcement Administration (DEA) agents came to her home and destroyed her cannabis plants, even though she was not selling the drug to other people. She filed a lawsuit against the U.S. Attorney General and the head of the DEA, seeking relief against the officers’ actions. The district court rejected her suit, but the Ninth Circuit reversed, holding that the Controlled Substances Act (CSA) exceeded the federal government’s Commerce Clause authority when applied to personal, local, noncommercial cultivation of marijuana. But the Supreme Court reversed again, holding that the CSA’s ban on growing marijuana for oneself is within Congress’s powers. In spite of the outcome, the following discussion reflects a great attempt to counter an adverse case — Wickard v. Filburn, 317 U.S. 111 (1942) — that allowed Congress to regulate the amount of wheat that a farmer could grow.

Source: Amicus brief for several states from Gonzales v. Raich, 545 U.S. 1 (2005).

Avoid major concessions.

The tone of the brief is informal, almost conversational — a choice that offers both benefits and risks. Research, for example, suggests that some judges may disfavor this approach, but the style makes the brief enjoyable and engaging. Before including light touches in your filings, make sure that your judge isn’t stodgy and that the stylistic touches represent a deliberate strategy.

In general, avoid humor in briefs.

Notice that the brief doesn’t overplay the value of legal scholarship: it simply uses it to establish factual points. That said, by turning to scholars rather than Wickard itself, the brief tacitly signals that the opinion falls in line with the other side’s reading. Watch out for the signals that you convey to judges about whether an authority supports your client.

This brief now drills into Wickard’s record to set up the argument that Wickard involved a greater effect on commerce than the personal use of marijuana in Raich. Notice how carefully the lawyers studied Wickard to figure out how to undermine it.

Why is this detail so helpful? It suggests that Wickard’s supposed holding — that Congress can regulate agricultural products grown for personal use — is in fact a dictum because Congress did not try to regulate personal use in such a case. Footnote 30 of Wickard provided a solid way for these lawyers to distinguish the other side’s best case. Mimic their stellar and careful reading of adverse opinions. This excellent point, however, gets consumed by the detailed calculations that precede it. When you calculate figures, keep the paragraph as short as possible and don’t place anything important later in the paragraph because readers may otherwise tune out by the time they get to your key point.