FREQUENTLY ASKED QUESTIONS ABOUT APPLYING FACTS IN ARGUMENTS
| Q. | I want to include the same basic facts in my Statement and Argument. How do I keep my motion or brief from being repetitive? |
| A. | Phrase the facts differently. Or provide more detail in one place than the other. Or provide a longer quote in your Statement and then quote just a few key words in your Argument so that your motion reminds judges of what a witness said or an exhibit showed. You can also quote a document in one place and then characterize or paraphrase it in another place. Repetition impairs the flow of your argument, so keep things fresh for readers. Also, as Example 6.6 demonstrates, if your case involves multiple litigants (or multiple distinct issues or very fact-intensive issues), you may simply tell readers in your Statement that your Argument will delve into the relevant facts of a given subject in more detail. |
| Q. | The chapter overview mentions using extrinsic facts (such as government reports) to support my position. If those extrinsic facts are not in the record, how do I place those facts in front of my judge? |
| A. | At the trial court, you can submit materials into the record; write a declaration authenticating those documents and then submit the document as an attachment to your or your witness’s declaration, which accompanies your motion. On appeal, you can often discuss facts that aren’t in the record if the court can take “judicial notice” of those facts — a term that usually refers to government documents. Lawyers try to stretch the limits of this exception. For example, Facebook used this technique effectively during a recent appeal. Its adversaries claimed that Facebook had duped them during settlement talks into accepting Facebook shares by falsely claiming that the shares were worth almost $36 apiece when in fact they were worth less than $9 per share. Facebook (on appeal) countered that California law required it “to report the values of stock options to the California Department of Corporations, which proceeds to post them on the Web for all to review.” Facebook then added — even though this fact had not been raised to the trial court — that its adversaries could “easily have looked up” these valuations just “as this Court could even now.” That public website showed that the shares were worth just $6.61. In other words, Facebook used a public website to show that it reported publicly that its shares were worth “far less than the $35.90/share value” that its adversaries “now say they had attributed to the stock.” Facebook thus supplemented the record. |
| Q. | How do I include photographs, videos, instructional films, charts, or other visuals in my motion or brief? |
| A. | Lawyers rely on multimedia with increasing frequency. Photos are easy to deploy: just insert them into the body of your motion or brief (or into an appendix). See Example 6.5. This is a common technique; indeed, it is nearly ubiquitous in certain cases, such as trademark disputes. Likewise, you can include a URL in your motion or brief (so that judges can watch a video or see a report). Before including URLs, try to assess the tech- savviness of your judge. Also be mindful of how images will affect your page count. |
| Q. | During oral arguments, it’s common for judges to ask hypothetical questions of lawyers to test the limits of the lawyer’s position. Can I use this sort of hypothetical argument in my motion or brief? |
| A. | Do so sparingly and concisely (if at all). In general, leave elaborate hypotheticals for the judges. For lawyers, hypotheticals are most useful when they are short and concrete (e.g., “this case would be different if any witnesses had seen the accident”) or when they present metaphors that help readers grasp a complicated concept by comparing it to something more accessible. Here is an example of using an elaborate hypothetical effectively, but I urge new lawyers not to indulge in such involved analogies, metaphors, or hypotheticals. The passage came from Oracle’s appellate brief in its lawsuit against Google. The brief alleged that Google’s Android operating system infringed on Oracle’s copyrighted software. The brief analogizes Google to someone who plagiarizes: Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix — the fifth book — and proceeds to transcribe. She verbatim copies all the chapter titles [and] copies verbatim the topic sentences of each paragraph.... She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid’s Harry Potter 5.0. The knockoff flies off the shelves. J.K. Rowling sues for copyright infringement. Ann’s defenses: “But I wrote most of the words from scratch. Besides, this was fair use because I copied only the portions necessary to tap into the Harry Potter fan base.” Obviously, the defenses would fail. |
| Q. | Can I make a fact-based argument based on what my judge previously said? |
| A. | Yes, and Example 14.7 provides a good example of how to point out respectfully that the court has already addressed an issue and reached a helpful conclusion. By contrast, playing “Gotcha!” (e.g., “it would be hypocritical of you, Your Honor, if....”) can be very dangerous, as judges may resent feeling cornered. |
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