Tuesday, August 5, 2014

The Past Can't Hurt You Anymore, Not Unless You Let It

The past can’t hurt you anymore, not unless you let it.
                                                          -Alan Moore

Legal writers often have difficulty addressing unfavorable facts. Generally, they must include those facts to satisfy their ethical requirements but want to do so in a way that doesn’t draw unnecessary attention to them. As I’ve indicated before, I think the best way to avoid drawing attention to bad facts is to include them in the place they logically fit in the statement of facts so that they appear to be just another part of the factual history. Other strategies for minimizing bad facts: (1) include them in the middle of a long sentence or paragraph, or (2) place them in a dependent clause, where they will receive less attention from the reader.

The second strategy was employed by Christopher Simmons’s counsel in his brief in Roper v. Simmons. Simmons was convicted of murder and sentenced to death for a crime he committed when he was 17 years old. On appeal to the Supreme Court, Simmons’s counsel argued juvenile offenders should be ineligible for the death penalty. They argued that Simmons was extremely immature for his age and unable to appreciate the seriousness of the crime and its potential consequences.

But prior to his trial, Simmons’s trial counsel had hired a psychologist. Dr. Cuneo, who determined Simmons was sane and competent to stand trial. Because the psychologist’s opinion was unhelpful, he did not complete a report or testify at the trial. Simmons had to address this bad fact on appeal, but chose to hide it in a footnote: 

Dr. Cuneo testified at the post-conviction hearing that he had conducted only limited interviews with Simmons' family. He was unaware of much of the developmental history that [Simmons’s newly hired psychologist] Dr. Smith elicited, including Simmons' dysfunctional home environment and his drug and alcohol abuse, and he believed that, had he known that history, it would have been significant to his evaluation. Based on the more limited and incomplete evaluation of Simmons he was able to conduct, Dr. Cuneo concluded that Simmons was sane at the time of the offense and competent to stand trial, but that his psychological condition was potentially mitigating. After discussing Dr. Cuneo's initial findings with him, Simmons' trial counsel chose not to have Dr. Cuneo complete his evaluation and not to have him testify.


Brief for Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *6 n.5 (internal citations omitted).

Simmons’s counsel does a good job of hiding this unhelpful fact that had to be addressed. After all, if a psychologist had found Simmons sane and competent to stand trial, that fact could undermine Simmons’s argument that juveniles lack the requisite understanding of the consequences of their actions.   

Strong legal writers have also learned more advanced strategies to deal with bad facts. Some writers choose to confront bad facts head on but to minimize their importance by including additional helpful facts. This strategy was employed by Exxon’s counsel in litigation over the Exxon Valdez oil spill. The Valdez ran aground because its crew failed to properly steer the vessel, negligence compounded because the Valdez captain had left the deck, in violation of Exxon’s explicit policies, at the time the accident occurred. The Valdez spilled 285,000 barrels of oil into Prince William Sound.  

In its brief to the Supreme Court, Exxon chose to confront those bad facts but minimize their importance by focusing attention on Exxon’s post-spill efforts: 

On March 24, 1989, the Exxon Valdez, a state-of-the-art, well-equipped tanker, ran aground on Bligh Reef in Prince William Sound. The immediate cause was the failure of Third Mate Cousins to steer the vessel away from the reef. The vessel's master, Captain Hazelwood, instructed Cousins when and where to make the turn, but then left the bridge - a violation of Exxon's explicit policy requiring two officers to be present. For reasons that remain unknown, Cousins failed to make the turn as instructed, and the ship went aground, spilling 258,000 barrels of oil.

Exxon immediately dispatched an emergency response team which prevented the discharge of the remaining 80 per cent of the vessel's oil. Exxon acknowledged responsibility for the spill and initiated a massive cleanup, ultimately spending $2.1 billion on that effort - almost double Exxon's annual profit at that time from all United States petroleum operations.  

Exxon also established a claims program that paid commercial fishermen and others asserting that the spill had disrupted their businesses. Plaintiffs “were almost entirely compensated for their damages years ago.” “Some were paid cash without providing releases, some released claims but not all, and some released all claims. Exxon spent $300 million on voluntary settlements prior to any judgments being entered against it.”  

Typically, claims were paid in advance, on estimates of what the fishermen would earn in 1989. Since fish processors pay fishermen at the end of the season, Exxon paid many fishermen before they would normally have received payment for fish. Such payments did not so much compensate for losses as prevent them. Alyeska Pipeline Service Company, the operator of TAPS, paid another $98 million to resolve claims that its oil spill contingency plan had been inadequate. Millions in claims were also paid by the Trans-Alaska Pipeline Liability Fund, the entity created by Congress to provide compensation for a spill. The Fund sought and obtained reimbursement from Exxon. 

In addition, Exxon instituted comprehensive remedial measures to reduce the risk of future spills, including: (1) new navigation policies specifying daylight-only departures and reduced speeds in icy conditions, limitations on deviations from traffic lanes, and increased use of tug escorts; (2) a technologically advanced satellite-based navigation tool; (3) a strengthened policy requiring masters to remain on the bridge; (4) enhanced safety training programs; (5) revised alcohol policies; (6) improved monitoring and reporting procedures; (7) random testing for alcohol or substance abuse; (8) an absolute prohibition against use of alcohol by vessel officers while on a tour of duty; (9) additional mates in port; (10) new mandatory rest periods; and (11) strengthened corporate environ-mental and safety policies, a new Safety, Environmental and Regulatory Department, and a $1 billion industry-wide program to improve spill response capability. 


Brief for Petitioners, Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (No. 07-219), 2007 WL 4439454 at *2-4 (internal citations omitted).

Exxon’s counsel’s strategy is genius. The Valdez spill was then the largest in U.S. history, and Exxon could not get around that fact or the fact that its crew was negligent. So Exxon succinctly addressed those bad facts in a single paragraph, then spent the next four paragraphs outlining all the good acts Exxon undertook post spill. By the time the reader finishes the passage, the reader has almost forgotten about the spill itself.

The next time you find yourself with bad facts, consider employing one of these strategies to minimize the impact of those facts and maximize persuasion.

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