Teeming with Themes

An important—but often overlooked part of written advocacy—is developing a theme you’ll use throughout the brief. The theme should be supported by the evidence, consistent with the legal outcome you seek, easy to understand, and memorable.

In my book with Adam Lamparello, Show, Don’t Tell: Legal Writing for the Real World, we outline a fictional case in which the defendant is alleged to have defamed a California resident by making blog posts from the defendant’s home in Pennsylvania. The defendant doesn’t want to be subject to suit in California. The defendant’s theme might look something like this: 

Forcing a litigant to travel more than 2,500 miles to defend a lawsuit—based solely on two online blog posts—is unreasonable, unfair, and unconstitutional.

That theme is supported by the evidence (the defendant’s home is more than 2,500 miles away from the court), consistent with the legal outcome sought (dismissal or transfer to a Pennsylvania court), and easy to understand and memorable.

In contrast, this theme, while supported by the evidence and consistent with the outcome sought, isn’t interesting or memorable and isn’t a persuasive theme:

The California courts lack personal jurisdiction over Simon Harrison because he lives in Pennsylvania, not California, and his statements were posted to a website from his home in Pennsylvania.

As I discussed in last week’s post, common themes from literature that translate to persuasive advocacy include:

•         Good versus evil

•         Rich versus poor

•         Powerful versus powerless/Strong versus weak

•         Power and corruption

•         Lack of fairness/justice

These themes may be applicable in any number of situations. But applicable statutes and case law may support additional themes.

Readers of this blog know I’m a big fan of Chief Justice Roberts, and I’ve talked about his work as an advocate many times before. My favorite Roberts’ brief, in Alaska v. EPA, contains a law-based theme.

To make a long story short, the Alaska litigation resulted from the state’s decision to allow a large mine to install a particular pollution control system (the BACT or Best Available Control Technology). The EPA challenged the decision, claiming that Alaska acted arbitrarily and capriciously in its determination. But the law at issue, the Clear Air Act, favored Alaska’s position:

The [Clean Air Act] by its terms thus gives the States the authority to determine BACT for a particular source, and allows the States broad discretion in making that determination. This is confirmed by the Act's legislative history: “The decision regarding the actual implementation of best available technology is a key one, and the committee places this responsibility with the State, to be determined in a case-by-case judgment. It is recognized that the phrase has broad flexibility in how it should and can be interpreted, depending on site.”

So Roberts reminded the reader throughout the brief of the “broad flexibility” given states to determine BACT on a “case-by-case” basis.

-“Because BACT is a discretionary judgment, involving the ‘case-by-case’ prioritizing and weighing of potentially competing impacts and costs, there is no single, objectively “correct” [technology] determination for any particular source.”

- “The determination of BACT is ‘strictly a State and local decision’ — “[f]lexibility and State judgment are [its] foundations.”

- “Congress intended the States to have ‘broad flexibility’ in applying the statutory factors, and ‘[t]he weight assigned to such factors is to be determined by the State.’”

-“In substituting its judgment for that of Alaska, however, the EPA plainly usurped the State's prerogative to determine BACT ‘on a case-by-case basis.’”

- “BACT is a discretionary judgment based on the case-by-case weighing of the applicable statutory factors. Accordingly, there is no single, objectively ‘correct’ BACT determination for any particular source—no ‘technology of choice’ that applies without regard to case-specific policy judgments about how to balance competing impacts and costs.”

- “By giving the States the authority to determine BACT ‘on a case-by-case basis,’ Congress ensured that the States would be able to effectively ‘manage their allowed internal growth’ under the Act.”

- “When it came to BACT, however, Congress had a different idea, and left that determination—‘on a case-by-case basis’—to the States.”

Whether your theme is fact-based or law-based, remember that you shouldn’t try to shoehorn the facts or law into theme they aren’t consistent with. And don’t beat your reader over the head with the theme: Do as Roberts does and weave the theme throughout the brief, like an undercurrent that is always present but not always visible.