21 June 2017

Vivid Facts Win Cases

In a recent U.S. Supreme Court decision over whether the Patent and Trademark Office should have the right to ban offensive trademarks, one of the most powerful arguments cited repeatedly in the Court's opinion by Justice Alito was an appendix to an amicus brief from the Washington Redskins which listed myriad really offensive trademarks that the Patent and Trademark Office had already held could be granted registration.

These vivid facts, by example, which the Court was left to its own devices to weigh and interpret, made it obvious that any application of the offensiveness standard was arbitrary. This list also strengthened the case that it would make no sense to adopt the government's argument that registration of a trademark rendered that trademark government speech which was entitled to greater regulation than other kinds of speech.

This brief is a great illustration of an important concept in persuasive legal writing. Often, vivid facts can be as powerful in which side wins or loses a case as legal precedents and statutory interpretation arguments. Certainly, vivid facts don't always work. But, even when they don't, they will often, at least, lead to a heartfelt dissent supporting your argument because they won someone on the bench over to your client's side of the argument.

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