Example 5.4
Takeaway point 5.4: Point out the absence of authority for the other side’s position and any meaningful errors in what it says about its authorities.
Attack your opponent’s research in two ways.
First, call attention to the absence of support for its position. For instance, one litigant submitted a reply brief observing, “Plaintiff bases its entire conclusory claim on nothing more than an unreported decision from the District of Montana that has never been followed by any other case and has since been vacated....” Second, undermine the authorities that the other side does cite — not just by undermining those cases (as in Example 5.3), but also by showing that those cases do not say what your adversary claims. The following example demonstrates both techniques, reflecting that good lawyers will (i) pummel you if you fail to cite authorities and (ii) dissect and demolish the authorities you do cite. Thus, ensure that the legal support for your position is ample, strong, and resilient.This case arose when a city in Alaska started to tax some of the boats that docked in its ports. The tax law was written in a way that caused the tax to fall exclusively on large oil tankers. Polar Tankers, which owned large oil tankers, challenged the tax, alleging that it violated the U.S. Constitution’s Tonnage Clause — a provision that prevents states from discriminating against specific ships or shipowners. (Even the creative spark to think of the obscure Tonnage Clause reflects stellar, innovative advocacy.) This brief persuaded the Supreme Court that the tax was an unconstitutional violation of the Clause.
Source: Shipowners’ reply brief from Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1 (2009).
The brief explains ad valorem taxes in an earlier section.
Define the terms of the debate in ways that favor your client — even if you have to narrow and qualify your claims. For example, the highlighted passage merely states that there has not been a (i) discriminatory tax of a (ii) specific kind (i.e., ad valorem) that (iii) applied to vessels (as opposed to other property), and (iv) that reached a final, favorable judicial judgment.
This passage makes two very clever moves simultaneously: it criticizes the City for failing to cite authorities, and it uses the City’s own quotations against it. This tactic is the result of good research; where another lawyer may have seen an ellipsis and assumed something irrelevant or uninteresting had been omitted, Polar Tankers found an argument. Be wary, however, about making allegations against the other side’s integrity without providing evidence. Here, an example would have proved helpful. The lawyers presumably did not want to dwell on the other side’s errors — such digressions can derail an argument’s flow. One solution in extreme cases: lawyers could (if the court rules do not prevent this approach) attach a separate appendix showing each of the misleading quotes submitted by the other side. Few judges want to read so much detail, but that approach would let judges see the other side’s mischief without fattening the brief. See Example 14.2, lines 44-45.
Notice that the brief does not repeat the City’s argument. Repeating an argument risks burning it into a reader’s memory. Even so, attacking an argument without restating the argument increases the risk that readers won’t understand your point. Thus, I recommend reminding readers what the other side argued when responding to its arguments, but frame the argument in your client’s favor as if it were an affirmative argument.
The brief molds these three quotations so that they are pithy, punchy, and pertinent. Keep quotes short, when possible — especially when you actually want readers to read them.
In a reply brief, lawyers can steer a judge back to their opening brief. See Chapter 15.
The prior paragraph of this brief attacks the City for its dearth of cases; this sentence launches a paragraph that shreds the authorities that the City does cite. In the real world, smart, aggressive lawyers will skewer you for your errors.
Polar Tankers has landed a stinging blow: the Justice never wrote this quotation, which was issued long after his death. Out-research your adversaries or they will out-research you. That said — and this is critical — do not confuse a blow that stings the other side from one that knocks it out. Good research is helpful. But it is infinitely more vital to build an affirmative case: to present facts and arguments that compel a favorable outcome rather than to weaken the other side’s case.
Notice that the first two quotes are ambiguous: what does it mean to say that a boat may be taxed “like” other property? A town may choose to tax homes but not cars; by analogy, these treatises could be read to say “cities may tax boats however they want — just like they could do with other property.” Rather than dwell on the ambiguity, however, Polar Tankers wisely construes the quotes in its favor and shunts them to a footnote so that readers are less likely to dwell on the ambiguity.
Footnote 3 disposes three of the four quotations. Then the brief obliterates the fourth quotation in the highlighted text, showing that the relevant treatise helps Polar Tankers, not the City.