FREQUENTLY ASKED QUESTIONS ABOUT ADVANCED TECHNIQUES WITH FACTS
| Q. | If I catch my opponent making an error, should I always point it out to the judge? |
| A. | Adapt your response to the situation, to the importance of the error, and to the relationship that you have (or want) with opposing counsel. For isolated, minor errors, I recommend ignoring them; highlighting an adversary’s irrelevant gaffes can make you seem petty. At most, point out those errors gently, and in a footnote. When your adversary makes major mistakes, however, or a large number of smaller ones, point out the errors if doing so will undermine your adversary’s credibility. |
| Q. | What if the other side attacks me or my client? |
| A. | Karl Llewellyn’s advice was to “shrug it” when an adversary attacks you. See Appendix A. Likewise, Bryan Garner’s The Winning Brief sensibly encourages litigators to remain calm and thereby make your adversary look like a hothead. See, e.g., Polar Tankers, Inc. v. City of Valdez, 2009 WL 788634 (Appellate Brief) (U.S. Mar. 23, 2009), Reply Brief for the Petitioner (No. 08-310) (“We respectfully suggest that this harsh characterization of our argument is a tad over-caffeinated. It also is just plain wrong....”). Be sure, however, that your credibility remains sound. |
| Q. | What if I accidentally misquote a document or a case and get caught by my adversary? |
| A. | Don’t mess up: proof your documents repeatedly and check all of your citations carefully. But if an error slips past you, assess whether there’s a way to explain why it doesn’t matter. Some law offices will own up to the error, emphasize that it was accidental, express embarrassment, and assure the court that the error was atypical. Their goal is to minimize the harm to a specific client. But other top lawyers will worry about bad publicity and will deny that the error actually occurred, endure the criticism (without responding), or engage in tit-for-tat counterpunching by hunting down similar errors made by their adversary. Don’t err. But learn to forgive yourself if you do. |
| Q. | If I include law or legislative history in my Statement of Facts, how do I know when it crosses into the sort of outright advocacy that belongs in an Argument? |
| A. | There’s no bright line. Top lawyers increasingly sprinkle legal authorities into their Statements. I recommend this test: will the legal authority provide (1) insight into the meaning, mechanics, or purpose of a law in a (2) noncontroversial way that (3) judges will actually benefit from? |
| Q. | I included law and extrinsic facts in my Statement, but now my Statement is long — approximately thirty pages. Is that too lengthy? |
| A. | A thirty-page Statement of Facts is likely to cause judges to lose focus and become impatient when they do not immediately see the relevance of what they are reading. The tips in this chapter are not intended to encourage you to submit behemoth Statements. One trick: if your case implicates multiple legal issues, you can provide a short overview of the facts and then have a series of mini-briefs in which each piece of your Argument is preceded by a short Statement. In other words, you break your facts into pieces and place each piece next to the relevant part of your Argument. Judge John Walker (Second Circuit) has endorsed this approach, which he reports seeing in briefs filed by various assistant U.S. attorneys. Alternatively, cut some details to limit the size of your Statement. Also, an Introduction (see Chapter 13) helps judges to grasp why facts that might not seem relevant immediately are important to the case. |
| Q. | Should I look for evidence that my adversary (or opposing counsel) made inconsistent arguments either earlier in the case or in past cases? |
| A. | Yes, you can and should hunt down evidence that your adversary or opposing counsel took positions previously that conflict with their current positions — either in the same lawsuit or in previous cases. Highlighting hypocrisy and selfcontradiction is a great way to undermine an adversary’s argument and its credibility, but don’t overdo it. Focus on major “shifts” related to key points. You can mention these inconsistencies in either your Statement or your Argument. |
1. One 2007 motion addressing a real estate dispute, for example, used the following convoluted analogy in a California court: “The relationship between KWR and Szuch is best described by a baseball metaphor, the famous double play combination of the Chicago Cubs, ‘From Tinker to Evers to Chance.’ RAFEH is Evers, the guy in the middle. That is, KWR exerted control of RAFEH, and as discussed factually and legally below, Szuch was RAFEH’s agent/employee.”