The Importance of Making Your Client a Sympathetic Figure: An Example from a Winning Brief.
Posted on August 12, 2015
One thing I have written about repeatedly in this blog is the need for an appellate attorney to write his or her brief in a way to make his client appear sympathetic to the members of the appellate court. To put it more bluntly, I’ve written that in my experience you are more likely to win appeal, regardless of the issues or law involved, if the judges feel warmly toward your client. Whether a living being or a business corporation, your client needs to be “humanized.”
So how do you do that without making your intent obvious? You do it by putting favorable statements regarding your client in the Statement of Facts, by how you phrase the issues raised, or how you explain the nature of the case/appeal in the brief’s introduction. In a brief from two years ago where I helped a small plaintiff’s personal injury law firm successfully oppose a petition to the Alabama Supreme Court by the international manufacturer of the computer portion of an airbag/restraint system who sought a writ of mandamus ordering the trial court to reverse its order compelling discovery of an algorithm for deployment of the restraint system, I opened the brief focusing on the very human last moments of the life of the man killed in an accident when his airbag and seat belt pretensioner did not deploy. In two sentences I described a good, simple man, hopeful for the future, who was suddenly, for no good reason, wrenched from the lives of his family.
On the way home from attending church as a family on Sunday, March 27, 2011, Ron [ ], the manager of a grocery store, and his wife Dorothy asked his stepson to drive them past a house they were hoping to buy. They just wanted to have another look.
[description of accident]
Ron [ ], riding in the front passenger seat, should have survived the accident. Everyone else did.
Ron’s stepson, Matthew [ ], walked away with a minor thumb injury. Ron’s wife, Dorothy, a rear seat passenger who was lying across the back seat with a migraine headache, suffered a dislocated hip. She was not wearing a seat belt. Donnice [ ], the driver of the Nissan Murano, suffered minor injuries, as did Peter [ ], the driver of the Ford Ranger. The airbags in their vehicles had deployed.
But unlike the Nissan Murano and Ford Ranger, the safety features of the 2008 Chrysler P.T. Cruiser that were supposed to protect Ron [ ] from injury in this crash failed to deploy. The pretensioner on the seat belt Ron was wearing didn’t activate to take up slack and lock and the front passenger airbag didn’t fire and inflate. Exhibit 2 (car interior). Unprotected, Ron was flung forward by the frontal collision with the Ford Ranger and his face slammed violently into the dashboard. His head and facial injuries caused a massive bleed which resulted in an anoxic brain injury. He died several days later at University Hospital in Birmingham, Alabama. Exhibit 3 (death certificate).
As a result, his loved ones are now left with both unimaginable loss and unanswered questions. Why did both Ron’s seatbelt pretensioner and airbag fail to activate? Why did the pretensioner on his stepson’s seatbelt and the knee airbag activate, but the steering column airbag fail to do the same? What would cause the failure of three of the five crash-activated safety features in the front passenger compartment?
Lawsuits are about finding answers to such questions, about finding truth. This wrongful death lawsuit in the Circuit Court of Etowah County by Dorothy [ ] is about finding, for Ron’s family, the true answers to these questions. Not simply the answers that a defendant would want them – and a jury – to believe. Lawsuits should be decided based upon facts being revealed, not by the fact some information has been concealed.
If I had opened the brief with argument as to why the petitioner’s contention that the information ordered to be provided in discovery was not protected from discovery as a trade secret, I don’t believe I would have won. Focusing first on the moral reason why the discovery was needed — to answer the family’s question as to why their loved one suffered fatal injuries in a relatively low speed crash while everyone else walked away from the accident — provided the foundation from which to build the legal arguments that ultimately succeeded before the appellate court.
Never forget that underneath the black robes, judges are human too, subject to be influenced by the same feelings and sympathies as the rest of us. While you can’t win an appeal solely by remembering to present your client in the most favorable light, in the right case, a close case, it can be difference between winning and losing.