Example 6.4
Takeaway point 6.4: When your adversaries fail to present evidence, point out to the court that the record does not corroborate their claims.
Just as an absence of authorities undermines an argument (see Example 5.4), an absence of facts can hobble your adversaries.
The following example emphasizes the absence of facts in the other side’s brief. In this dispute, a law school (Hastings) allowed any student group to apply to become a registered student organization (RSO). Only RSOs received school funds. One group, the Christian Legal Society (CLS), adopted bylaws requiring all members and officers to sign a “Statement of Faith” opposing homosexuality and premarital sex. The law school rejected CLS’s application to become an RSO, concluding that the group’s bylaws violated the law school’s policy that all students can participate in all RSOs. CLS sued, claiming that Hastings’ policy violated its First Amendment rights to speech, association, and religion.Source: Brief of Hastings College of the Law in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).
As reprinted, this paragraph omits authorities showing that litigants are bound by their stipulations. The reprinted text shows why this admission was so deadly to CLS.
The brief discussed the applicable legal rule in greater detail earlier. Here, we see the importance of reminding readers of the law so that they know why the ensuing facts matter. And this standard shows why CLS’s factual stipulation was so deadly: the entire legal standard turns on whether the government’s policy is neutral or discriminatory. CLS had stipulated at trial that the policy did not discriminate against religious groups.
Describing how a law or policy operates in practice is another sort of fact-based technique that lawyers use when building fact-centered arguments.
Citing facts that are in the record — or noting the conspicuous absence of facts, as Hastings does here — is another way to build a fact-based argument.
Past conduct and treatment of your adversary can also support your client’s position.
This sentence makes an overly broad claim: Hastings would almost certainly object if a student group prohibited gays and lesbians (or African Americans or women) from voting to select the leaders of a group. You need to balance persuasion and precision; here, the lawyers write too imprecisely.
The lawyers use the absence of problems (at either Hastings or elsewhere) to advance their point. But the lawyers engage in dangerous writing here: although amici provided no examples, CLS itself (in the very footnote that Hastings cites) reported an incident in which College Republicans “at another university” hijacked the Young Democrats’ election process.