Example 11.4
Takeaway point 11.4: Raise procedural issues before you raise substantive issues.
The next Table of Contents reflects the principle that, in general, procedural issues should be raised before substantive issues.
We have looked several times at the brief that sought to force a judge in West Virginia to recuse himself: the judge’s chief benefactor had spent close to $3 million trying to elect him, and the judge voted to reverse a huge jury award against his benefactor’s company. The plaintiffs argued that the unusually large contribution created a constitutionally unacceptable risk that the judge would feel indebted to his backer. Here is the Table of Contents from the other side’s brief, which sought to fend off the effort to force recusal.Source: Coal company’s brief in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
Federal rules often require corporate parties to disclose their ownership structure so that judges can assess — ironically for this case — whether to recuse themselves.
The Table of Authorities lists every authority cited in the brief, including articles and websites, but not including materials from the case you are litigating. It also lists the pages on which each authority appears.
You may notice that the brief omits pages 1 and 2; the litigants added an Introduction, but they chose not to label it as an Introduction, presumably to comport with the letter of the Supreme Court’s rules. As Chapter 13 will explain, Introductions are so important that lawyers often include them even when the rules are silent about whether lawyers may do so.
Before getting into the substance of the argument, the lawyers try a procedural move: they ask the Court to dismiss the case. This is usually the correct place for this sort of move. The heading is not especially interesting, but this move itself is a bold ploy because the court already decided to review the case.
We see another successful example of an argument in the alternative. The context alerts readers that this argument needs to be considered only if the Court rejects the primary argument.
The brief reminds readers that this party won in the lower court by using the word “affirmed.” This brief uses all caps for its headings, which is typical of Supreme Court briefs; avoid all caps, however, in your subheadings (as this brief has done).
Notice that each type of argument gets its own subsection, and the historical argument was so important (or so strong) that it preceded the doctrinal argument and the fact-based argument about the Court’s own practice. Some readers may dislike the repetition of “probability of bias,” but it coins a phrase, thus winning the battle to control the semantics of the case. The lawyers calculated that they would win if the issue was whether there was merely some unspecified “probability of bias,” and they therefore wanted this phrase to stick.
Yet another argument in the alternative appears in the brief. Headings do not need to reflect that an argument is “in the alternative,” but they may do so.
The policy arguments follow the historical, doctrinal, and fact-based arguments. This is standard positioning for a policy argument — near the end. Subsections II.B.2 and II.B.3 sound very similar, but they raise the distinct points that, respectively, (i) there is no sensible way to test whether a judge feels indebted to a contributor and (ii) many lawsuits would be filed to disqualify judges. Ideally, the subheadings would unambiguously foretell what each subsection was going to discuss.
To round out the brief, we see one more argument, which asserts that the other side’s proposed rule would not justify the remedy that it requested. Notice that the brief focused first on its best points — the general problem with forcing judges to recuse themselves — and addressed the specific dispute only at the end of the brief. Why? Because the facts were bad for this party, but the law and policy were strong.