Know Your Case
Have you ever tried buying equipment from a salesperson who didn’t know beans about it? You might understandably have fled the store. Although lawyers aren’t selling equipment, they are selling their cases.
Judges listen to counsel because, at the time of briefing or argument, counsel can be expected to know more about the legal and factual aspects of the case than anyone else. But if it becomes clear that this is not so, judicial attention will flag. If you’re asked about a fact in the record that you’re ignorant of, or a clearly relevant case that you’re unfamiliar with and have failed to mention in your brief, don’t expect the court to give your argument much weight. Your very first assignment, therefore, is to become an expert on the facts and the law of your case. If you’re a senior partner who hasn’t the time to do this, assign the case to the junior partner or associate who knows it best.
At the appellate stage, knowing your case means, first and foremost, knowing the record. You never know until it is too late what damage a gap in your knowledge of the record can do – not only at oral argument, but even in your brief. Richard Bernstein of Washington, D.C., tells of a case in which the plaintiff-appellees, represented by a prominent firm first retained on the appeal, made the theoretically plausible argument that one reason they should receive an injunction for patent infringement was that damages were difficult to prove. Unfortunately, as the appellant’s reply brief carefully (oh-so-carefully) explained, the appellee’s own expert had told the jury that in this case damages were easy to prove and calculate. Needless to say, the appellee did not press the point at oral argument.
Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law applies – what cases are in point, and what cases can be distinguished – depends ultimately on the facts of your case. If you’re arguing an appeal, you must have a firm grasp of what facts have been determined below or must be accepted as true, and what facts are still unresolved.
Knowing a case also means knowing exactly what you’re asking for – and how far short of that mark you can go without bringing back to your client a hollow victory. Say a member of an appellate panel asks, “Counsel, if we agree with your petition, would you be content with a remand for the lower court to consider X, an issue not decided below and not briefed or argued here?” You must know whether your opponent ever raised that issue below. If not, you must insist on outright reversal and entry of judgment in your favour. If you fail to do so, the court may cite your failure as a concession that your adversary hasn’t forfeited the issue. If, however, your adversary raised the point but the lower court didn’t reach it, you should graciously concede that remand is a possibility but go on to explain why the appellate court should reject that disposition – as by showing, for example, that the facts could not possibly support a judgment on that ground. By conceding what must be conceded, you establish your credentials as a reliable and even-handed counselor.