Example 6.2
Takeaway point 6.2: Master the record so that you can use facts and procedural details to advance a client’s arguments.
Lawyers use a variety of record facts and procedural facts to explain why their clients should win.
To illustrate how lawyers pluck evidence from public reports, trial transcripts, the other side’s filings, and expert reports, we look at a case in which a private citizen wanted crime scene photographs of a White House lawyer (Vincent Foster) who had committed suicide. The brief had just discussed a case (Ray) which observed that “unsubstantiated allegations of governmental misconduct” should not enable citizens to acquire sensitive government records.Source: U.S. government’s brief in Office of Independent Counsel v. Favish, 541 U.S. 157 (2004).
Here, the brief uses a common technique — intentionally lengthening a sentence that lists evidence — so that the evidence seems overwhelming.
The lawyers try to disgust readers here. The issue in the case was whether the risk of embarrassment or suffering to the Foster family could overcome a citizen’s general right under the Freedom of Information Act to obtain government records. If the lawyers can cause readers to recoil, they help their cause: readers will find compelling the premise that Foster’s family would be upset if the photos of his corpse became public. Manipulating readers’ emotions is dangerous, but top lawyers manage to do so. Subtly.
The brief uses procedural facts, namely the transcript from trial-court proceedings, to corroborate its claims.