App Ad Notes 9/16/04


Using persuasive techniques


The law is the important thing.  Writing the statement of facts and the question presented each help you write the other one.  To cite to the Appendix to the Petition for Writ of Certiorari, do “Pet. App. 12” or something.  It’s best to have a citation to the record for every fact, or at least every fact that’s significant to your argument.  What legal conclusions do you want your reader to draw?  What facts are relevant to each of those legal conclusions?  Make them feel like they thought of it.  Don’t argue with the facts in the statement of facts.


The reader is not a computer.  They will make inferences from the facts you provide.  Also, their own biases and prejudices will come into it.  How can you use your facts to overcome prejudices?  You can use juxtaposition.  You put together two facts that, taken together, will make you infer something.  Don’t use this technique to create an impression that you know is wrong.  You might not want to use adverbs.  You can characterize the facts a certain way if the facts themselves support the characterization.


Brainstorm about facts that are bad for our side: She is using marijuana.  She’s allergic to THC.  She didn’t grow the marijuana herself.  She has resorted to buying it off the street before.  How can we make a “buddy fact” for each of the two bad facts?  She is a state-sanctioned, tightly controlled pot smoker and she’ll die without it.  It’s not used recreationally.  She’s not the stereotypical pot smoker, or at least we think she’s not.


What about questions presented?  Courts look at these questions first.  These questions give the court a “picture” of your case.  They want to see the issue, facts, and legal context.  You can also use persuasive techniques.  The end is the position of emphasis.  You also can’t assume the element at issue.  Put in facts that will make them start inferring things that are good for you.  Don’t write a question that provides an inaccurate depiction of the facts.  It can be technically correct but still misrepresent the facts.  You need a theme in your oral argument.


Adjunct meeting


Standard of review can be before the argument or in it.  We should include the standard of review for preliminary injunctions (look up Supreme Court cases).  If it’s in your argument, have a title: “standard of review”, and no more than a paragraph.  It’s trendy, but not required, to have another level that’s “intro” before the standard of review.  This could be repetitive with the summary of the argument.  You might put your heavy-hitting policy stuff and setting the tone in this section.


So the outline goes:


I.                   Intro

II.                Standard of Review

III.             Preliminary Injunction

a.      Likelihood of success on the merits (most important) – Commerce Clause (Lopez categories, get to third one: substantial effects test, four factors)

b.     One or three preliminary injunction elements (depending on which case you use) – you could put them all here or split them up.  You don’t need a whole lot here.  You might find a case that defines irreparable harm.  The others are harder to research.  Balance of burdens, and public policy are the other two.


Before the argument, you have TOC, TOA, summary of argument, facts, (standard of review), then argument.  The standard of review is abuse of discretion.  There is a preliminary injunction case based on the constitutionality of a statute.  So you can get the standard and the setup there.  It will come up if you put in “preliminary injunction” close to “standard of review”.  When you’re looking up standard of review for future cases, put in your procedural setup, then within, for example, 15 of “standard” and 15 of review.  You could do the same with “summary judgment”, for example.


Look at circuit court cases trying to work with Lopez and Morrison.  For example, McCoy.  And there are a bunch more that come down on both sides.  They tried to use “economic endeavor”.  Find language that tells you that.  Look in circuit court cases for what language they pick out.  Use them as examples.  They are helpful.


How about the link between interstate and intrastate commerce?  If it’s an economic activity, then you can aggregate for purposes of determining a link between interstate and intrastate.  Consider Wickard where they piled on wheat, a national commodity, therefore an economic endeavor.  Once they say it’s an economic endeavor, they can go to great lengths to find an interstate connection.  You could say there is no economic endeavor, or assume, arguendo, that there is an economic endeavor, but say that there is too much attenuation.


What about the “but for” test?  “But for” the local activity, the interstate market would not exist.  That’s how Morrison put it together.  “But for the local marijuana use, the national market for marijuana would not exist.”  This wasn’t found in McCoy.  If people didn’t eat and grow wheat locally, there wouldn’t be a national market in it.  We’re not looking for the medical necessity defense because it wasn’t raised below here.  It can’t be, because marijuana users are suing the government, not the other way around.  We’re also not using Ninth and Tenth Amendment arguments.  You can use them in general federalism arguments (like related to findings, etc.) but we don’t need a separate section for the Ninth or Tenth Amendment.


Only do a little research on the last three elements of preliminary injunction.  Mostly look at the merits.


Here are some picky things.  Don’t say “so and so person believes such and such”, just say “such and such is true”.  Don’t use words like “believe” and “feel”.


For table of authorities, use alphabetical or separated by courts, then alphabetical.


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