July 21, 2019

Ross Guberman: The Winning Wal-Mart Brief — 6 Sales

In finding for Wal-Mart in Wal-Mart v. Dukes, Justice Scalia argued that a class action needs “glue” to hold together. So does a great brief. Use these six techniques from the winning Wal-Mart brief to help make your own arguments stick.

1. Parallel Lives

In this sweeping opening sentence, Ted Olson and Ted Boutrous of Gibson Dunn hit the Justices with a parallel sequence of three vivid verbs that sum up why they should reverse the Ninth Circuit:

The Ninth Circuit’s decision allowing this class action to proceed contradicts Federal Rule of Civil Procedure 23, departs from this Court’s precedent, and endorses an approach that would abrogate the substantive and procedural rights of both Wal-Mart and absent class members.

A similar parallel sequence caps the same introduction. This one showcases why decertifying the class would be a good idea, not just a legally sound one (what I call in Point Made the Why Should I Care? technique):

The certification order is harmful to the rights of everyone involved. It distorts basic principles of class-action and anti-discrimination law, eviscerates fundamental procedural protections for class-action defendants, and allows three class representatives to extinguish the rights of millions of absent class members without even telling them about it.

Note how the homespun phrase “without even telling them about it” aims to align Wal-Mart with the little guy.

I immediately recalled a similar passage from another Ted Olson brief—which also sought to reverse the Ninth Circuit—in MGM v. Grokster, the file-sharing case:

The Ninth Circuit’s decision eviscerates intellectual property rights. It frustrates those who have invested substantial resources in creating an original work, only to see the fruits of their labors snatched away. It rewards those, like Respondents, who unjustly profit by designing tools to enable the theft of private property. And it stifles innovation by depriving citizens of the incentive to create works of art or music or literature that can be enjoyed by people ages hence.

Back to Wal-Mart. The attorneys also exploit parallelism in the argument itself:

As shown below, the evidence, at most, indicates that Wal-Mart’s pay and promotion system could possibly result in individual disparities—not that it was designed to do so, was intended to do so, or would inevitably do so with respect to every single female employee around the country.

One suggestion: Shun the oddly beloved phrase “with respect to.” Long and fuzzy, it also ruins the rhythm of the sequence here. “For every single female employee” would have worked just fine.

2. Zinger Words

Class-action doctrines are dry and abstract, so they need some zesty language to come to life. “Distorts” and “eviscerates” aren’t the only catchy words in Wal-Mart’s winning brief.

Try picturing a “broad array of diverse claims” or an “amalgam of unrelated claims.” Not much comes to mind, right?

Now picture a “kaleidoscope” of claims instead. Those scattered bits and specks of color are just the image the Gibson Dunn lawyers want you to conjure up when you think of the Wal-Mart class action:

This kaleidoscope of claims, defenses, issues, locales, events, and individuals makes it impossible for the named plaintiffs to be adequate representatives of the absent class members.

(It’s no surprise that the kaleidoscope made a cameo in the Supreme Court brief; Ninth Circuit Chief Judge Kozinski used the same word in his dissent below.)

“Untethered” below is another zinger:

The district court rejected Wal-Mart’s objections that Drogin’s statistics were untethered to plaintiffs’ store-level theory of discrimination on the ground that it would “engage the Court in a merits evaluation of the expert opinions.”

And “sidestepped” is a novel twist on the usual suspects for claiming error:

The Ninth Circuit majority sidestepped this critical issue, erroneously opining that “[t]he disagreement” between Drogin and Haworth regarding the appropriate level of aggregation “is the common question.”

Two quick thoughts: A disagreement isn’t “regarding” something, it’s “over” something. In fact, I would avoid both “regarding” and “concerning” as much as possible. And how about affixing “erroneously” to “opine”? Even if a court can “erroneously opine,” “sidestepped” already makes it clear that the Ninth Circuit erred. Once is enough.

3. Starting Gate

I have long noted that the greatest writers, legal or otherwise, prefer such short transitions as “and” or “but” or “nor” to clunky ones like “additionally” or “however.” The Gibson Dunn team is no exception:

Nor can the certification order be reconciled with the requirements of Rule 23(b)(2), which is limited by its terms to claims for “injunctive relief or corresponding declaratory relief.”

Plaintiffs seek billions of dollars in individual monetary relief, yet seek to evade the additional procedures required for fair adjudication of monetary claims, including notice and opt-out rights for absent class members.

And they take no issue with the “consensus among the circuits,” holding that courts are not only authorized but obligated to resolve such disputes at the certification stage relating to Rule 23 factors.

But because this case, properly analyzed, does not meet the prerequisites imposed by Rule 23(a), a trial on the merits would be completely unmanageable and unfair.

4. Ebb and Flow

Here’s a trick from the Wal-Mart brief that will help you add speed to your prose: Move words like “thus” and “therefore” closer to the verb so they don’t weigh down the start of your sentences.

Read the beginning of this version and see how slowly it moves: “Therefore, Plaintiffs’ bid for affirmance of the class certification order rests on a fundamental—and quite radical—remaking of Title VII law.” Now look at what the Wal-Mart team wrote instead:

Plaintiffs’ bid for affirmance of the class certification order thus rests on a fundamental—and quite radical—remaking of Title VII law.

And now imagine swapping “Accordingly, Plaintiffs failed to establish that . . .” for this sentence from the actual brief:

Plaintiffs thus failed to establish that a crucial element of their prima facie case could be proved on a classwide basis.

5. Size Matters

Another way to distinguish your writing is to start a paragraph with a short sentence. This paragraph opener has just five words:

Title VII codifies certain defenses.

Sprinkled throughout the brief are these other short sentences that contrast with the inevitable long ones:

Yet plaintiffs could find no such practices.

That should have ended the inquiry.

This too was error.

6. Classy Marks

In almost all great nonfiction writing, you’ll find thoughtful uses of the dash, colon, hyphen, and semicolon—four punctuation marks that give many lawyers heartburn.

The dashes here highlight the intervening phrase and emphasize the repeated word “different”:

The class memberspotentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the countryassert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses.

Also underused is the colon. When swapped for “because” or “due to the fact that,” a colon lets the reader know that an explanation is on the way:

This is a failure of proof at the most basic level: Plaintiffs challenge decisions by individual store managers, but failed to adduce any statistical evidence of discrimination (or even disparities) at the store level.

How about the semicolon? Try one out the next time you want to highlight a contrast:

But, regardless of the strength of Wal-Mart’s statistics, it is plaintiffs’ burden to produce “significant proof” of a company-wide discriminatory policy; plaintiffs failed to meet that burden by failing to offer any proof of gender-based disparities at the store level.

Finally, hyphenating phrasal adjectives can make your writing clearer and more professional:

Plaintiffs’ disparate-impact claim requires them to prove “a particular employment practice that causes a disparate impact” on a prohibited basis.

Those are six of the techniques that glue this great brief together.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

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