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.

Making A Record.

A good factual presentation in a trial court can turn a difficult appeal into a clear cut case. The 10th Circuit's search and seizure case of United States v. Carrizales-Toledo is an excellent example of a prosecutor presenting testimony that overcomes any objections on appeal. By the time the recital of facts from the record is done on page seven of the opinion, the outcome is a foregone conclusion. The facts brought out are the kind of facts that are present in most search and seizure cases, but few prosecutors are sharp enough, and pay enough attention to the details, to articulate them in a manner that turns a mere hunch into probable cause with a solid factual basis.

Details like the fact that the officer patrolled the area for four years (which in turn makes the fact that he doesn't recognize the vehicle stopped relevant), that a similar bust had been made a week earlier, like a conversation with a local resident about who they knew was behind them on the road, and an exceedingly detailed account of the step by step process by which the bust was carried out (with nuances like the officer smelling marijuana before the suspect said anything, and removing a gun from a holster, but not pointing it at the suspect), made the case easy.

Maybe the statements weren't true. They are almost too good to be true. But, getting that kind of direct examination into a trial transcript, in a way that sounds entirely plausible and even a little funny, is a fine art.

The law in question, concerning confessions obtained after a Miranda warning based on statements made before such a warning, is hopelessly muddy and presented a reviewing court with an opportunity to set aside the conviction. But, because the officer's direct exam was so convincing and was credited by the trial court, it didn't happen. The appellate court, somehow, found its way through the morass, even though it didn't agree with the trial judge's legal reasoning, and affirmed the trial court's decision not to suppress the defendant's incriminating statements.