Example 6.3
Takeaway point 6.3: Use your adversaries’ own words against them when writing your Argument.
The best facts to use in your Argument often come from your adversary, as we see below.
The energy corporation Enron engaged in bogus accounting in the late 1990s to make itself seem very profitable. When the company’s cooked books were discovered, Enron collapsed, costing investors more than $60 billion. One of Enron’s outside bankers, Bayly, allegedly helped Enron to manipulate its earnings. The federal government indicted him. At trial, the district court admitted into evidence an email that tied Bayly to the fraud, but this email contained inadmissible hearsay. Bayly was nevertheless convicted. On appeal, Bayly argued that the email was inadmissible. But harmless evidentiary blunders cannot vacate a conviction, so he needed to rebut the government’s claim that admitting the email was inconsequential. Here, Bayly’s lawyers use the prosecutors’ own words to show that admitting the email into evidence was a turning point in the trial.Source: Reply brief for Bayly in United States v. Brown, 459 F.3d 509 (5th Cir. 2006).
The government bears the burden of showing that improperly admitted evidence was harmless; it is not the defendant’s duty to show that the admission was harmful. Pay attention to whether you need to prove something or whether you need to show that the other side has failed to prove something.
The lawyers’ repeated use of the phrase “this is the same evidence” creates momentum that pulls readers along with it.
We see more legal judo: the government’s prior arguments now help the defendant show that the email affected the trial’s outcome.
Bayly’s lawyers introduce four separate helpful facts — in fewer than 100 words — and then end the paragraph with a memorable quotation. Presenting facts this concisely and clearly maximizes their persuasiveness.