Example 9.2

Takeaway point 9.2: Courts are especially receptive to policy arguments based on the consequences that a decision would have on the legal system.

Lawyers often raise policy arguments based on procedural concerns such as forum shopping, abusive discovery practices, increased litigation costs, or — as in the following passage — frivolous and invasive litigation.

This example comes from the West Virginia case in which a judge reversed a $50 million award against a coal company whose chair had contributed $3 million toward the judge’s campaign. Here, the coal company discusses the risks of making it easier for parties to force judges to recuse themselves.

Source: Brief arguing that the West Virginia judge did not need to recuse himself, from Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

The “flood gates” metaphor has been used for decades to describe the risk that litigation will increase greatly. The metaphor is now stale — nearly a cliche. Metaphors can be incredibly useful and persuasive (see page 35), but lawyers need to assess critically when a metaphor has been overused.

The brief makes rapid-fire policy arguments. Each of the sentences in the paragraph raises a distinct argument, reflecting good, brisk pacing. This sentence’s specific concern — rampant motions to recuse — persuaded four (dissenting) justices, who predicted that the Court would “regret this decision … when courts are forced to deal with a wide variety of Caperton motions.”

The first two policy arguments are simplistic, but this concern (about using contributions to manufacture a conflict) reflects the sort of creative thinking in which you should engage. The more sophisticated your judge, the more sophisticated you can get with your policy analysis. The brief’s next sentence, which notes that an adverse decision would prevent state legislatures from crafting bright-line rules, is even more brilliant. (Example 9.5 elaborates on how to present a line-drawing argument.)