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.
