Example 9.3
Takeaway point 9.3: Meld your fact-based arguments and your policy arguments.
The following example highlights the essential difference between a fact-based argument and a policy argument: the former emphasizes the harm to your client, and the latter explores the effects that would befall third parties.
The two often work well side by side. Describing how your client would be injured makes your policy argument concrete and clear. Showing that other parties would be hurt makes your client’s arguments plausible and compelling. Example 9.5 also shows this technique.Designer Christian Louboutin sells high-heeled shoes. The most distinctive feature of his shoes is the red sole or “upper,” which he trademarked in 2008. Louboutin sued another leading designer, Yves Saint Laurent (YSL), that began selling monochromatic red-soled shoes, alleging trademark infringement. Louboutin sought injunctive relief to prevent YSL from selling any red-soled shoes in any shade of red. Here, YSL raises a simple policy argument to oppose a preliminary injunction.
Source: YSL’s brief in Christian Louboutin S.A. v. Yves Saint Laurent America, 778 F. Supp. 2d 445 (S.D.N.Y. 2011).
This is a fact-based argument: YSL discusses how it would be affected by an injunction. By the end of the paragraph, YSL has pivoted into a policy argument, focusing on how an adverse decision would affect third parties, such as other designers.
This policy argument won the battle but lost the war. The Second Circuit ultimately agreed with YSL on this point, permitting it to make monochromatic red shoes. But the court also held that Louboutin had intellectual property rights to shoes on which only the soles were red. Lawyers frequently must choose, in conjunction with their clients, whether to pursue a broad victory (e.g. Louboutin has no rights to red soles), a modest victory (e.g. Louboutin controls only a specific shade of red), or a narrow victory (Louboutin can control red- soled shoes unless the shoe is monochromatic). This sort of strategic choice is a critical but nearly invisible decision in every filing.
You can strengthen your policy arguments by analogizing to other fields. Here, for instance, the brief could have referred to the risk that Ferrari could ban U.S. automakers from selling red cars or that Coke could keep other companies from selling red cans.