Brief Writing 101 / Kethledge

Chas Rutledge

A woman was walking her dog. The dog ran into the street. The woman ran into the street. A car struck the woman. The woman landed on top of the car. The occupant of the car was injured after landing on the hood. Occupant on the hood. Sound ridiculous? Maybe not when occupying is defined as “in, on, entering or alighting from,” as it was in the driver’s car insurance policy. But don’t say ridiculous out loud, and definitely don’t write it down, unless you want a rant and some case law from Judge Kethledge:

There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

Before I forget what dicta means, the real lesson in Bennett v. State Farm is that there actually is a bad way to request an oral argument:

Appellee State Farm Mutual Automobile Insurance Company (“State Farm”) does not believe that oral argument is warranted for this appeal because: (1) this appeal is frivolous; and (2) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. . . . Nevertheless, the Bennetts have requested oral argument in this case. While State Farm submits that oral argument would not advance this Court’s decision-making process in this case, if this Court grants the Bennetts’ request, State Farm asks to be permitted to participate in such oral argument.

There was no such oral argument. A shame. That one could’ve been fun.