Example 15.1
Takeaway point 15.1: When the other side filed its brief first, submit a counterstatement and point out which claims conflict with the jury’s findings.
We have previously looked at Exxon’s brief from the case in which that company’s supertanker spewed oil into Alaskan waters.
Here, the plaintiffs-respondents counter Exxon’s version of what happened. Exxon claimed that its captain (Hazelwood) was sober when the accident occurred, that his instructions about how to steer the boat would have prevented the accident, and that Exxon behaved ethically by encouraging Hazelwood to get alcohol treatment. Examples 1.5 and 3.3 show Exxon’s position. Here, the plaintiffs-respondents counter this version of the “facts.”Source: Respondents’ brief in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (some citations omitted).
Exxon, in its opening brief, sought to revisit factual disputes that the district court already resolved. Here, the respondents fire back and prevent Exxon from escaping the pro-plaintiff findings from the trial. In other words, the plaintiffs subtly ask the Supreme Court to defer to the lower court (based on the standard of review that applies to factual findings).
In Sofec, another accident occurred that involved an Exxon-owned oil tanker and a captain’s negligence. The brief hints that Exxon is a repeat offender — a technique that Example 3.3 explored — but this approach is probably too subtle without a parenthetical.
Exxon sought to show that the oil spill resulted from the unforeseeable negligence of a single employee.
The issue on appeal was whether the $2.5 billion punitive damages award against Exxon was excessive. A beer at a bar may seem insignificant, but this fact supports the finding of gross negligence, and shows that Exxon officials knew that Hazelwood was drinking again.
Notice that the citations that follow this sentence could support either point — that Hazelwood was drinking or that he was insulting another captain. This common trick lets lawyers add multiple citations for a critical proposition (i.e., that Hazelwood was drinking and boating), even though most of the citations might support the innocuous point (i.e., that he insulted someone).