Background: For my brief I have to argue that the trial court should not have awarded summary judgment. At issue is whether a certain enforceable. There is a very well defined three prong test for assessing "reasonableness" where the contract has to pass all three test. At the lower court, the court determined that the agreement at issue flunked part one of the test. Thus, I need to argue that there are issues of material fact that should have precluded summary judgment, but on all three prongs since it is reviewed de novo.

This one point in particular bothers me: I don't see how arguing for a lower standard on appeal of summary judgment (that there is a material fact in dispute) is more persuasive than actually arguing the point itself. For example, compare "Factor A is reasonable" with "There are issues of triable fact that suggest A is reasonable." Forget the fact that the latter is putzy (I still haven't found a good stylistic way to incorporate the summary judgment standard.) It is just generally a bad negotiating tactic in arguing a point.

If a brief is meant to be persuasive, then one should try to stake out as much ground as you can, at first, and concede ground as you go along. Forget swindling, this is used car salesman 101. Most of us knew this principle as a child, trying to negotiate with parents. When I haggle for bottles of Dasani (the most cost effective water available for your money) outside central park, I don't start at $2.00 which is arguably what I can get out of the guy. I start at $.50 or a dollar. I want to go as low as possible without going so low to the point the guy stops taking me seriously or makes him angry. You also need to pick and choose spots carefully so as not to waste time / effort. Negotiating down the price of a Big Mac is futile (trying to get it for free would be easier). Also, you can't overshoot on every point because then it dilutes the tactic. I think the phrase goes "shoot for the moon and land amongst the stars." I think their insistence to not doing it, not appealing to basic human emotion, is a testament to law school's ability to squelch creativity, and, in this case common sense. Of course, I'm not advocating submitting a brief written on pink paper just trying to supplement orthodox legal thinking with common sense.

I don't want my brief to be read every other brief, especially since I know my brief will never stand out on account of my writing because I am not nearly as fluid as some of my classmates. Besides, no significant societal advancement to my knowledge has occurred through repeated exercise of the status quo.

So in sum, I just don't give a shit because I don't think that either is right.

-- MatthewZorn - 07 Mar 2010

Matt- I feel your frustration with these 1L briefs. Mine is also an argument that summary judgment was improper in the lower court. However, I don't necessarily feel your same irritation with having to argue against a summary judgment decision at a lower standard. I don't see it so much as a question of what's more "persuasive" - it's a question of what needs to be done to get your case where it simply has to go for the client to stay in the game. Since, at this level, what you have to argue is that summary judgment was erroneous, you have to meet a lower standard in order to assure that your client doesn't lose right off the bat. That doesn't mean, however, that you can't argue "for the stars"- just that you need to balance what you actually need to accomplish practically (simply to get summary judgment reversed so you can actually have a case) with your real persuasive arguments. Just because all you need to argue is that there are "issues of fact" doesn't mean that it isn't important to make a stronger case. I think there's still room to be creative with that argument while still keeping within the bounds of the practical reality of what the case demands of you.

Maybe your frustration is more with the posture of the assignment- that we've been asked to argue this seemingly lower standard, when we could have been told to argue the case flat-out. Maybe it's more of a realistic assignment since we've been given appellate briefs to write and are working off a set Record and aren't doing trials- simply because it isn't feasible in our 1L writing class. Are you more frustrated with the way the school is approaching the assignment in general, or with the way the judicial system works in requiring these sort of intermediary steps that avoid the "meat" of the argument? I'm curious, because I think I understand where you're coming from but would like a little more clarification.

-- JessicaHallett - 08 Mar 2010