Example 6.6

Takeaway point 6.6: Contrary to conventional wisdom, you do not need to include in your Statement every fact that appears in your Argument. And in complicated cases, you shouldn’t.

Somewhere in the shadows of the past, a custom evolved that a Statement must include every fact that the motion or brief discusses. That can be a dangerous rule. It weakens many briefs badly by making them boring and slow, and by heaping facts on judges before they know why those facts are relevant. Disregard this “rule” if doing so will help your client. Instead, indicate in your Statement that further details will be discussed in the Argument.

This approach is reflected below. The Statement merely says “many professional content owners — including plaintiffs — routinely post their material on YouTube and authorize marketers and licensees to do the same. Infra 44-50.” Then, all of this information (and more) is used to carpet bomb the other side in the Argument. (The same technique was used five other times in the Statement, shortening it significantly.) Here, YouTube uses facts to advance two arguments: (1) Viacom planted copyrighted material on YouTube (suggesting that Viacom is suing for injuries that it caused to itself), and (2) Viacom’s difficulty in identifying its own copyrights demonstrates the infeasibility of Viacom’s suggestion that the Second Circuit should require YouTube to monitor every video posted on its website.

Source:YouTube’s brief in Viacom v. YouTube, 676 F.3d 19 (2d Cir. 2012) (omitting dozens of citations to the record).

The amount of evidence that YouTube produces in this section borders on overwhelming. It refers to multiple executives at multiple networks all uploading — and disguising — multiple videos. With such a volume of content, a judge might think that no one could possibly keep track of which videos violated copyrights. And that is exactly the effect that YouTube wanted.

YouTube referred to these facts (and the other facts in this example) in its Statement, but signaled there that it would discuss them in greater detail in the Argument (to prevent the Statement from becoming too long).