Law school teaches you how to think like a lawyer through caselaw analysis, with an emphasis on law. Figuratively speaking, law students take one elective on “clients and facts.”

When new lawyers start practicing, they are always looking (and hoping) for a clean set of facts that neatly fit into “analysis a” or “analysis b.”

Cases rarely work out that way. Every set of facts and every case is different.

And good facts are a very good thing, even in the face of strong opposing caselaw.

The facts make your case stand out

Your clients’ stories can make or break cases. The cases you really remember (good result, good client, etc.) are the ones where the facts are different than usual.

Maybe you practice civil rights law and one client was particularly aggrieved by the conduct of another entity. Maybe you practice criminal defense and your client made one bad choice in a life of otherwise demonstrably good ones. Maybe your client was treated with such disrespect by a debt collector that it brings opposing counsel to tears.

Years later, you can repeat the facts down to the last detail. You will always remember those cases. Opposing counsel will remember those cases. And so will the court. Intentional or not, unique cases tend to be treated differently by everyone involved.

On the flip side, there are cases where six months after the case ends, you probably don’t remember many of the facts. A year later you don’t member anything about the case. That doesn’t mean you didn’t do your job, or the case was without merit. But it’s a good example of how a unique set of facts separates a case from the “average” case.

To be fair, hopefully you always have good facts (if not great ones). And the best advocates are masters at telling a story about their client and maximizing every important detail.

Caselaw can be distinguished

The longer I practice, the less frightened I am by opposing counsel telling me that “the cases are all on our side.”

There are plenty of ways to distinguish your case from the applicable body of case law (within reason). Maybe your state or district has not fully examined the issue. Maybe the cases cited by opposing counsel are procedurally distinguishable: motion to dismiss vs. summary judgment. Maybe your case is the first decision to examine a recent change in the law.

Or maybe your case is factually distinct. No two cases have the exact same facts. Cases might have similar facts, but they are never exactly the same. That’s what makes our jobs interesting and unpredictable. Sure, a similar set of facts will usually lead to a similar result. But not always.

Maybe the intention of one party is different. Maybe one party is more/less sympathetic. Maybe one side was acting with more/less malicious intent.

Whatever the difference is, assuming you are complying with Rule 11 (state and/or federal), arguing that your case is different is not an automatic losing proposition. In many of my cases where it’s my client’s good facts vs. the other side’s “good law,” my client has come out ahead. It’s not a 100% success rate, but then again, tell me one thing that has a 100% success rate in the legal profession, and I’ll buy you a Porsche.

Distinguishing cases and creating more case law is how the law evolves. And it’s how courts reach the right decisions, because  . . .

Judges want to reach the right result

Judges are people. Judges are people who are tasked with an enormous responsibility. They want to get the right result, because they want equity.

I have heard judges discuss this on more than one occasion at a CLE or other event. I’ve heard judges talk about how lawyers seem to underplay the facts of their case. The judges say they want to know more about the actual facts and less about the applicable law. In fact, a retired judge pointed out “you can always find at least one case to support your position.”

That judge went to explain that judges want to know about more about the facts, because they want to reach the right result. He lamented that at oral argument, lawyers tend to focus too much on the case law. He explained that judges know the applicable law (or at least most of it), but they rely on the attorneys for a better understanding of the facts.

A great legal professor taught me that when you walk into court, you need to tell the court what you want it, why you want it, and how to get there (a permissible legal route). What you want and why want it are generally based in fact and equity. How you get there is the legal mumbo jumbo. You absolutely need it, but if you can convince a judge of parts 1&2, part 3 should fall into place.



  1. Avatar Mark says:

    This article reminded me of what a law professor told me: “When you have the facts on your side, argue the facts. When you have the law on your side argue the law.”

  2. Avatar Tom says:

    Great column. Judges already know the law, or think they do, but know nothing about your facts and don’t have much time to learn. Neither do jurors, for that matter, yet lawyers fill trial time with patronizing lectures about the law. You should start your argument with your best facts. I’m amazed at how many lawyers I see making the mistake of not doing so. Go to court and you see people start with meandering preambles about “the standard for summary judgment” or “the statute of limitations for a tort action is three years” instead of “the plaintiff renounced any right to sue for these damages in the contract he signed” or “this suit is timely, because the last day of the three-year period fell on a legal holiday, giving us till the next business day to sue- which we did.”

    I remember from my time clerking, how you could really tell which lawyers were good- because they got right to the point and stayed on it. It was a whole lot harder to piece together what do in a case where the lawyers burbled on page after page, often citing old caselaw that was outdated or inapplicable, burying their best factual arguments. Those were the appellate cases where oral argument was most helpful- you could put the questions to them directly, and sometimes see the weak cases collapse before your eyes.

  3. Avatar Noah Weil says:

    To Mark, the way I heard it was

    “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When you have neither the facts nor the law on your side, pound the table.”

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