One Way You Should Never Open a Brief

No one’s going to die, but if you open your brief by presenting the other side’s case, you might kill your own. The classic example arises when a Defendant opens a Motion for Summary Judgment by listing the Plaintiff’s claims:

Plaintiff, Marvin Miller (“Miller”), alleges: (1) “discrimination based on race”; (2) “harassment and unfair treatment on the job”; and (3) “unfair labor practices.”

This opening makes the case sound like an “employer-discriminates-harasses-and-mistreats-employees” case, which the Defendant then must spend the rest of the brief denying.

Use your first sentence instead to set the tone for your own case:

On November 16, 2012, Plaintiff Marvin Miller violated Allied Steel’s alcohol and drug policy when he tested positive for cocaine.

This approach makes the case sound like an “employer-had-no-choice-but-to-terminate-employee-under-the-influence-of-cocaine-endangering-himself-and-others” case, which makes a judge wonder how the plaintiff ever mustered the temerity to sue.

Same case. Same facts. Same law. Different approach.

Another example, from a contracts case:

Plaintiff Dalton-Bishop brings this action against Defendant King Industries for damages allegedly caused by King’s delay in delivering nonconforming goods. Plaintiff claims breach of contract, breach of warranty, and negligence.

Right: a "nonconforming-breach-of-contract-breach-of-warranty-negligence" case. But here’s the sexy part: the key clause supporting Defendant's case was underlined in the original agreement. Why didn’t the lawyers open with that, their own case, rather than present the other side's laundry list?

The contract between King and Dalton-Bishop obligated King to supply two diesel generators to Dalton-Bishop for the Air Force tracking station on Shemya Island. The contract contained the following clause:

10. DAMAGES: In no event shall Supplier be liable for special, consequential, or incidental damages, or for the loss of anticipated profits, or for the loss of use of any equipment . . . whether based on warranty, failure, or delay in delivery or otherwise. (emphasis in the original)

Now we have a "why-are-you-in-my-courtroom-wasting-my-time" case. That puts the burden back on the Plaintiff.

I always recommend that counsel cooperate with opposing counsel, but you don’t have to argue opposing counsel’s case for her. Let her argue her own case.

Writing Tips

One, Often Fatal, Mistake

One Way You Should Never Open a Brief

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