One Way You Should Never Open a Brief
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.