December 10, 2013The Main Message
Last week, we looked at an excellent government brief defending a lawsuit filed against it by the White Mountain Apache Tribe over the government’s (alleged lack of) care for Fort Apache. The paragraph that we discussed did a good job of quietly undermining the lower-court decision from which the government was appealing, and was in the recitation of facts and procedural history. This week we’ll look at some other portions of the fact section to see how they, too, can advance your case before you even get to the argument section.
The fact section is your chance to do at least two important things. First, select, organize, and characterize facts in a way that is truthful and accurate (thus not sacrificing your credibility) but also advances your case. And second, build interest in the case to encourage your audience (here, the Justices of the Supreme Court and their clerks) to pay attention.
US v. White Mountain Apache Tribe is, legally, a case about whether the United States can be liable for money damages for failure to keep up property that it held in trust under an Act passed by Congress on March 18, 1960. Even the very intelligent people who work at the Supreme Court might be a little bit bored by that, so the case needs to be brought into the real world—the physical world—and you should argue your case while you’re at it.
The government did a very good job of this. The property in question is the old Fort Apache, part of a string of military forts used to advance and hold the territory of the United States in the 1800s, and thus automatically invokes all sorts of images (albeit no doubt totally inaccurate ones) from movies and TV shows.
“Fort Apache,” the government wrote, “was established by the United States Army in 1870 and, with the surrounding 7579 acres, was set aside by President Grant in 1877 as a military reserve. In Arizona’s territorial times, Fort Apache provided a strategic outpost from which federal soldiers—often aided by White Mountain Apache scouts—engaged Apache bands, including the one led by Geronimo.”
This is a very nice sentence. It is, of course, pretty close to totally irrelevant to the dispute before the Supreme Court, but nobody who reads it will complain about that. It is interesting, it adds color, and it begins to anchor the dispute in the real world. It triggers a whole series of associations. It also, more subtly, partially disarms one such possible association. The reader—knowing that the White Mountain Apache Tribe has sued the United States about its care of a fort built on its land by what was then a hostile occupying force—might feel some automatic sympathy for the Tribe. The (utterly irrelevant) comment that the soldiers were “often aided by White Mountain Apache scouts” while they “engaged Apache bands” serves to point out that the true history was not so tidy.
After discussing some of the legislation that established the US Government’s control over the Fort Apache property, the government describes the property:
There are more than 30 buildings and other structures on Fort Apache. They include the officers’ quarters, barracks, parade grounds, and stables and barns used by the cavalry that first occupied the fort; school facilities such as class rooms, dormitories, and a cafeteria; and administrative buildings such as storage and septic facilities. See Pet. App. 3a; Compl. App. A (listing buildings). Numerous buildings are more than a half a century old, and several date back to the fort’s frontier days. Over time in the White Mountain environment, some buildings have fallen into varying states of disrepair, and a few structures have been condemned or demolished. See Pet. App. 3a.
An enumeration of the buildings at Fort Apache is hardly needed by the Supreme Court to rule on the dry legal issue before it. So what was accomplished by this paragraph? Two things. First, the subject matter of the dispute is made more concrete and real (and now is brought into the present). Second, the government—which is accused of failing in its fiduciary duty to keep up the place—subtly argues that it is unreasonable to expect it to keep so many old buildings (“several date back to the fort’s frontier days”) in good repair, in such a place (“in the White Mountain environment”).
Don’t pass up any opportunity to argue your case. In a well-designed brief, every section should do so.