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The Art of Advocacy

Judges are now insisting that plaintiffs make their case with facts instead of merely putting their clients on notice of a claim.

When the United States Supreme Court issued its decisions in Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) and Aschroft v Iqbal , 556 U.S. 662 (2009), there was sea change in the standard by which judges evaluated lawsuits to determine their sufficiency to withstand a motion to dismiss.  Rather than merely placing a defendant on notice of a claim, the Court established a new standard.  Plaintiffs must allege facts allowing a court to find that a claim is plausible.  In reviewing the allegations of the complaint, courts are challenged to weed out conclusory statements and base their analysis on only the factual pleadings of the Complaint.

Naturally, Iqbal and Twombly have raised serious access to justice issues for plaintiffs who must muster the facts without an opportunity to gather evidence through discovery.  The “plausibility” standard is of course entirely subjective; what is plausible to one judge based on his or her life’s journeys may not be plausible to another.  And with the challenge to plead facts, plaintiffs are undoubtedly encouraged to put the “kitchen sink” into their complaints and plead complaints that are exponentially larger than those of yesteryear.

With all of the problems caused by Iqbal and Twombly, there is a nugget of gold that can be snatched as a teaching lesson.  The notion that litigants are instructed to make their cases based on facts and not conclusions or hyperbole, is a solid concept.

The question of what is a fact and what is a conclusion is of course a lesson that lawyers must understand.  In one of my classes at Emory Law School, I asked the students to outline the good facts and bad facts for a case involving assault and robbery. A student raised his hand noting that a good fact for the Defendant is “he has an alibi.”  I turned to the student and said, “Are you telling me a fact or are you giving me a conclusion?”  The student looked at me.  I said, “unpack what you just told me in terms of the evidence, or facts, that support the alibi.” The student then began to tell me about a witness who saw the defendant at a theater performance at the time of the alleged incident; theater tickets found in the defendant’s wallet; and a receipt from a theater vendor which had the time and date stamp on it.  Of course these are three very powerful facts – often hard to dispute – which are more compelling than merely stating the conclusion that an alibi exists.

In two weeks, I will again be teaching second year students trial advocacy at Emory Law School.  It is hard to explain the difference between facts and conclusions but I give them this example which, in past years, they seem to remember.

Several years ago, a seven year old girl who is the daughter of a trial lawyer, said to her father: “I hate my little brother, no one likes him, he is extremely difficult and we need to trade him in for a new brother.”  The father said, “Sweetie, haven’t I told you to make your arguments with facts and not conclusions or hyperbole?”  The daughter said, “Yes, I remember Daddy; I will start over. Here is a photo of your BMW and the can of spray paint used to redecorate it.  Here is a photo of our dog Spot tied up in your Versace Neck Ties and I have here a photo of your 80 inch Samsung TV set and the baseball that went through the screen; I also have here an essay the little fellow wrote for school which discusses his contemporary art projects. Finally, Daddy, here is a study by a prominent Harvard Psychologist who says that parents do well to act early and trade in ill-behaved children.” The father responded: “I understand.  Say no more.  The little fellow is history.”

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