Louis, Louis

Texas governor Rick Perry’s legal team recently filed a motion to dismiss criminal charges arising from his use of veto power to veto funding for Texas’ Public Integrity Unit (PIU). The case is rather complicated and political. Essentially, the PIU, which handles political corruption investigations, among others, is run by Travis County, Texas DA Rosemary Lehmberg, a democrat. Lehmberg was arrested for DUI in 2013 but kept her position. Perry, citing the loss of public confidence in Lehmberg, threatened to veto about $7.5 million in funding for the PIU unless Lehmberg resigned. When she refused, Perry went through with the threat.

Perry was indicted for coercion, even though, as governor, he had the power to veto the funding. According to the special prosecutor, the threat to use the veto to pressure Lehmberg to resign—not the veto itself—was criminal. Perry was also charged with misusing government property in his possession.

In their motion, Perry’s lawyers strike hard against the argument that Perry was in possession of any Texas property . Specifically, Perry’s lawyers contrast him with Augustus, arguing that Perry, unlike Augustus, is not “traversing his realm with a portable mint and imperial treasure in tow,” and has no more possession over Texas revenue funds than does any other Texan.

But a reference to one historic leader wasn’t enough. Perry’s

"Louis XIV of France" by Hyacinthe Rigaud - wartburg.edu

Licensed under Public domain via Wikimedia Commons

counsel then goes on to quote Louis XIV, claiming that “no governor can say of his or her state what the Sun King said of France: “L’état, c’est moi.”* (Translation: “I am the State.”).

We know to avoid Latin and legalese in our writing, but what about French? Do you think a touch of the language of love might make the judge fall in love with Perry’s argument?

Happy Friday! 

*Scholars still question whether Louis actually ever uttered these words.

Standards of Review

If lawyers give standards of review any thought at all, it’s a passing thought. But wise lawyers know that standards of review are important—they mean the difference between an “any evidence” review (unlikely to be overturned) and a de novo review (a much less deferential standard). So, you must determine the standard of review for your case early and frame your arguments in terms of the standard.

But you don’t need to give a rote recitation of the standard of review. Remember that every part of a brief presents an opportunity to persuade. Take the summary judgment standard, for example. Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

If you represent the party seeking summary judgment, you could frame the standard as follows: “When the moving party shows there are no genuine issues of material fact and he is entitled to judgment as a matter of law, the court is obligated to grant a motion for summary judgment”

And if you represent the party opposing summary judgment, you might say: “The standard for granting summary judgment is high.  Summary judgment may only be granted where the moving party shows there are absolutely no issues of material fact and the movant is entitled to judgment as a matter of law.”

Both sentences give the summary judgment standard accurately, but each is drafted to advance the writer’s goal. Judges generally know the summary judgment standard, but it doesn’t hurt to remind them of it in a way that favors your client’s position.

Judicial Notice of the Awesomeness of CCR & John Fogerty

I had forgotten about Fogerty v. Fantasy, Inc. 510 U.S. 517 (1994) until Timothy Sandefur (@timothysandefur) mentioned it recently on Twitter. I once heard this matter described as "the case where John Fogerty was sued for sounding too much like John Fogerty." That description is pretty accurate because Fantasy sued Fogerty for copyright infringement of a Fogerty song. 

While Fogerty was a member of Creedence Clearwater Revival, he wrote Run Through the Jungle, and the band sold it to Fantasy's predecessor in interest. Several years later, CCR disbanded, and Fogerty signed with Warner Brothers and released The Old Man Down the Road. Fantasy claimed Old Man infringed on its copyright to Jungle. 

A jury sided with Fogerty, and the case eventually reached the Supreme Court on the question of the standard for awarding attorney fees to a prevailing party. In his majority opinion, Justice Rehnquist notes that CCR, with its "swamp rock" style, is "one of the greatest American rock and roll groups of all time."

Kudos to the late, great Justice Rehnquist for recognizing the awesomeness of Fogerty and CCR! Videos for Old Man and Jungle are below. What do you think? Was Old Man an infringement on Jungle?

A Material World

Whether you’re a new law student learning to brief cases or a seasoned veteran writing a brief, identifying the material facts is crucially important to your success.

But what is a material fact? Generally, a fact is material if it tends

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in the context of Material Girl via Wikipedia -
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to prove or disprove a required element of a claim or defense. That’s a fancy way of saying material facts are the ones that matter—the ones that could make or break the case. Material facts will differ from case to case, and the same fact could be material in one case and immaterial in another. The best way to identify material facts is to identify the elements of your client’s claims or defenses and ask: does this fact have any bearing on my ability to prove or disprove those elements. If the answer is no, the fact isn’t material.

In my upcoming text with Adam Lamparello, we use the example of a professional-baseball-player client. If you’re drafting a motion to suppress drugs found on the client during a traffic stop, the client’s 95-mph fastball and two World Series rings likely aren’t material.  But if you represent the same client in a medical malpractice case where a doctor’s negligence damaged the client’s elbow ligaments and cost him his baseball career, the client’s 95-mph fastball and Word Series Rings are material because they speak to the extent of the client’s damages.   

This look-for-the-elements strategy for identifying material facts will work no matter the type of case you’re handling. Assume you are representing a party claiming breach of contract. The defense is that the parties had no binding contract. Any facts that tend to prove or disprove the existence of an offer, acceptance of that offer, a meeting of the minds, and consideration are material. Writings between the parties that you contend constitute offer and acceptance—material. The content of a telephone conversation between the parties that you contend shows a meeting of the minds—material. The length of time the plaintiff and defendant have been in business—probably not material. The parties’ expertise in their respective businesses—also not likely material.

When briefing a case or writing a brief, you may need to provide non-material facts to give background and enable the reader (whether it’s you later, your boss, opposing counsel, or a judge) to understand the context in which the case arose. But the only facts that matter are the material ones, so you need to focus your attention on understanding how they impact the case.