Example 6.1

Takeaway point 6.1: To prevail on a critical legal issue, provide a detailed fact-based explanation of why your client satisfies the applicable legal standard.

You must prove that your client satisfies the relevant legal rule.

To observe this technique, we return to the judge in West Virginia who refused to recuse himself even though the chairman of one of the litigants spent $3 million on the judge’s campaign. The excerpted passage presents facts designed to meet the applicable rule, which requires recusal if “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”

Source: Brief arguing that Justice Benjamin was required to recuse himself, from Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (some citations omitted).

The topic sentence concisely restates the Rule and tells readers what will follow, namely, the evidence in the record that supports the relevant legal standard. Then it delivers on that promise. Mimic this approach.

The term “3,000 times” sounds even more egregious than “$3 million.” Relative numbers are often clearer and punchier than absolute numbers.

To avoid repeating your Statement of Facts in your Argument, save a juicy quote for the Argument, as the lawyers do here. The Statement provided a more general description of Blankenship’s letter: “[Blankenship] widely distributed letters exhorting doctors to donate to the campaign because electing Justice Benjamin would purportedly help to lower their malpractice premiums.” The trick: even if you reiterate facts, rephrase or reframe them so that they don’t seem repetitive.

One sensible use for footnotes is to show your calculations: the text stays uncluttered, but readers can probe the footnotes to see how you reached your mathematical conclusions. Omitting this data could make readers doubt that the calculations are accurate.

Lawyers need to exercise judgment about when to make obvious points, and this brief makes the right call: readers might intuit that Blankenship’s huge contribution was intended to influence the $50 million appeal. But the brief makes this critical point explicitly lest readers miss it, and the phrase “strongly suggests” avoids overreaching..

Example 1.3 showed how to repeat a strong point to emphasize it; here, the same brief expertly fuses two mediocre points to hide each one’s frailty. Judges rarely review their colleagues’ recusal decisions. Thus, it’s no surprise that Justice Benjamin’s colleagues were unable to force him to recuse himself and it’s legally insignificant that his own colleagues thought he was biased. The points work better together than they would if made separately.