The Antitrust Attorney Blog
Author: Jarod Bona
This website is called The Antitrust Attorney Blog, not the Appellate Attorney Blog. But I have combined an appellate practice with my antitrust practice my entire legal career and we do a lot of appellate work at Bona Law. So sometimes we address appellate, writing, and briefing issues here.
I previously wrote about why you should hire an appellate lawyer.
And mused about what is great legal writing.
In this article, I discuss the three foundations for every argument on appeal. These can also apply to trial-level arguments, but at the appellate level you can usually build a more complete argument, so I will use the appellate brief as the model.
Of course, what I like about antitrust is that the cases tend to be more complex, which usually invites deeper arguments, even at the trial level (similar to an appellate brief).
My arguments incorporate these three components.
1. The Law
A legal argument has to describe how the law supports the party’s position. That much is obvious. But the execution is not always easy.
If you can’t find cases or statutes that support your position on appeal, you should really consider whether you want to argue the issue. Perhaps it is time to settle? Sure, you can sometimes build an argument based upon the extension, modification, or reversal of law, but even then you can usually find some support, even if you have to analogize.
Each situation is unique, but I think it is most effective to describe fewer cases with more detail than more cases with less detail. You want to show the judges that a previous court addressed the same or a similar issue and decided it in a way that favors your client. One on-point case discussed in detail is more persuasive than ten cases in a string cite that happen to have a favorable line or two.
With regard to statutes, the wording really matters. Sure, there is legislative history, etc., but it is incredibly satisfying to a court when the actual words of the statute support your position.
And don’t forget: The judges and/or their clerks will read your cases. If you fib or stretch or mislead, you will torpedo your credibility and sink your brief and possibly your client’s case. When I clerked on the Eighth Circuit, I was amazed at how often lawyers outright lied about the holdings of cases. Sometimes they weren’t even close, or actually contradicted the lawyer’s position.
2. The Story
Aren’t we done after we argue the law? No. Arguing that the cases and statutes support your position is necessary, but in many instances—especially on appeal—that isn’t nearly enough.
Every case has a story; indeed, every case ought to have at least two stories: The one told by plaintiff, and the one told by defendant.
This is a little fuzzier than the “law,” but it is just as important, maybe more so. Cases are decided by human beings, not robots. And as much as law schools often try to make would-be lawyers more robotic, the importance of story has not left us as human beings.
The story can be anything from why it is “fair” that the court not enforce an adhesion contract that some actual person was tricked into signing to telling the story about a monopolist company that was on the top of the world, but feared an upstart maverick competitor with a new way of doing business, so it entered into exclusive contracts with the only suppliers to the two companies to destroy the young maverick.
You might call it the “core theory,” but it is, at bottom, a story. And everyone loves a good story.
Another way to think about the story is that when you are trying to persuade a human being, you want it to be satisfying for him or her to decide in your favor. Sure, I bet every judge can name examples of when they issued decisions that were unsatisfying because the law required them to do so. But, most often, those aren’t the close cases on the law. Those are cases where the law really did dictate one result or another. On a close case, it is most persuasive to have a strong story.
You should really think about your story before you write, then make sure that everything you say fits within it. This applies to an appellate brief, but I think it applies more broadly to litigating a case in general. If you can develop a strong story, or core theory, every action you take should support it.
3. The Policy
So you have the cases, the statutes, and a story. What is left? Policy. This is where you show the substance behind the cases and statutes, and how you connect your story to the law.
Cases and statutes are empty vessels without policy. Sure, there is language that is helpful, and factual situations that might resemble your case. But both sides can usually find language in cases or statutes that support them, as well as factual similarities in supportive cases.
The real work of an argument is explaining why the policy behind a case or series of cases, or a statutory provision, supports your client’s arguments and story.
At the appellate level, it is likely that the case will require the judges to make new law, even if it is just a slight extension from existing law. To do that, the judges need to understand the reasons behind certain doctrines or statutes, so they know which direction they should go. Your argument must explain that.
Here is an easy example: Let’s say that you are represent the largest company that sells deodorant to retailers. A smaller competitor sues your client under the antitrust laws because your client offers retailers discounts based upon the percentage of the deodorant shelf that your product covers at their store. This is a form of a market-share discount.
Let’s also assume that this smaller competitor makes a poor product (without offering a better price) and that there are two other strong competitors that effectively discipline your pricing and product quality. The smaller competitor is really suffering because of your market-share discounts, but the other strong competitors are unaffected.
The argument goes something like this: The purpose of the antitrust laws is to protect competition not competitors—an undisputed point that is in probably hundreds of antitrust cases. The smaller competitor is losing business because it is making a poor product at a poor price. Regardless of the market-share discounts, my (fictional) client can’t raise prices or offer a weaker product because the other two strong competitors would very quickly exploit that move, and my client would rapidly lose market share. So even if the market-share discounts do make it more difficult for this weak competitor to sell its product—i.e. they harm the competitor—the market-share discounts do not harm competition itself. And antitrust only protects competition, not competitors.
Something like that.
Ultimately, every argument you make should incorporate the law, the story, and the policy. To do so effectively is not easy. It is an art form and requires careful thought and attention. But when it is done right, it is beautiful.