Example 5.6
Takeaway point 5.6: Showing that opposing counsel has filed the same case repeatedly and unsuccessfully damages his or her credibility.
Here is another example of an effective attack, this time targeting counsel.
The next example arose after purchasers of an antibiotic drug (Cipro) sued the drug’s manufacturer, Bayer. They alleged that Bayer had violated California’s antitrust laws when it settled an earlier case to avoid competing against rivals: under that earlier settlement, Bayer allegedly paid a generic drug manufacturer several hundred million dollars not to manufacture a generic version of Cipro. Bayer then promptly raised the price of Cipro by 16 percent. In this brief, Bayer argues in favor of immunizing it from antitrust liability for its settlement agreement; more specifically, it counters arguments that a group of law professors, led by one of the nation’s top intellectual property experts, raised in an amicus brief.Source: Bayer’s supplemental brief in In re Cipro Cases I and II, 200 Cal. App. 4th 442 (Ct. App. 2011) (record citations omitted).
The brief begins by trying to discredit the author — an ad hominem attack. In general, lawyers should avoid this technique — and judges consistently state that they dislike quarreling. But these attacks sometimes make sense. As one top judge admitted, he “forgot all about the legal issues when he read a spat between lawyers.” And, for a defendant on trial or for a party that wants to get a summary affirmance on appeal, having the judge forget about the legal issues might prove helpful.
Inexperienced lawyers generally avoid tables, pictures, graphs, and other multimedia tools that help readers to absorb information.
The column to the far right shows that, in each instance, the court did exactly the opposite of what Lemley requested.
This line and the next two hint that the amici have been targeting Bayer because amici sought to meddle in the Cipro litigation, which involved Bayer.
WARNING! As illustrated by the table, more and more professors had joined Lemley‘s amicus briefs. Bayer would probably counter “who cares?” Even so, the increasing support for Lemley’s position might cause some judges to wonder whether his briefs raised valid points.
This portion of the brief reflects a skill discussed earlier in the chapter — attacking absences and omissions of evidence — thus showing how legal-writing techniques can and should be used alongside one another.
Having damaged amici’s credibility, Bayer takes several additional jabs at the amicus brief.