Example 5.5
Takeaway point 5.5: An adversary’s past misdeeds undermine its credibility and improve the likelihood that your client will get a favorable result.
No one likes a repeat offender.
If your opponent is such a character, make sure the judge knows it. Pointing out the other side’s repeated misconduct can win credibility battles and motivate a court to act in your client’s favor. Example 3.1 showed you how to discredit a repeat offender in a Statement of Facts, but you can also use this technique in your Argument. Discovering that a plaintiff — or even an amicus — serially files lawsuits is easier than ever because online research databases now make it possible to search for a party’s (or lawyer’s) name in case filings. Even better, at least one legal database (Bloomberg) already has compiled party-specific docket sheets by topic; thus, with a few clicks of a mouse, you can find heaps of cases in which a given company was sued for a specific misdeed. The next two examples show how to target adversaries for a pattern of misbehavior.In the following case, a jury in Louisiana convicted Juan Smith of murder. The prosecutors, however, failed to turn over information showing that their star witness, who identified the defendant from the witness stand, had previously told police that he had not seen the murderer. The Supreme Court’s opinion in Brady v. Maryland requires prosecutors to disclose this sort of exculpatory information. Here, Smith’s lawyers show the Supreme Court that this ethical lapse was not an accident.
Source: Juan Smith’s brief in Smith v. Cain, 132 S. Ct. 627 (2012).
This example starts with authority that the Court can’t dispute — its own opinion from the prior Term.
We see here another benefit of a string cite (which we considered in Chapter 4). Citing so many cases might ordinarily be unnecessary, but here the bulk of violations underscores that a pattern of violations has occurred.
This detail about the timing of Kyles is doubly valuable. First, readers will infer that the prosecutors would be just as likely to violate their duty to disclose evidence in Smith’s case as they were in Kyles. Second, the brief insinuates that this county’s prosecutors brazenly committed Brady violations immediately after the Supreme Court ordered them to stop violating Brady. And this fact will irk the Court; judges seethe when parties ignore their orders.
The brief draws on Connick’s statements (as reported by Justice Ginsburg in a prior case) to discredit him. You should mine cases and news articles for information (and not just authorities) that can help your clients.
Information should generally be organized from “general to specific,” and this passage exemplifies that technique. The prior paragraphs looked at the pattern from all of Orleans Parish. Now, the brief narrows its attack to a single prosecutor.
Innuendo is often more powerful than allegation. The brief could have written that “a reasonable onlooker would infer that if Jordan was violating Brady in one case, he was probably doing so in a concurrent case.” But this brief sticks to facts, and lets readers form their own conclusions. Yet again, showing is more convincing than telling. Notice that the critical “hint” appears at the end of the paragraph to ensure that readers won’t overlook it.