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Poker Face: Concede Bad Facts But Put Them in Context

With legal disputes, rarely does every fact favor the prevailing party. To present a compelling case while maintaining credibility, nod to bad facts and then neutralize them by controlling how they appear in context.

One strategy is to embed unfavorable facts in Although clauses and then turn the reader’s attention elsewhere. In the copyright case of Aguiar v. Webb, for example, Larry Lessig had to defend a filmmaker who had used protected footage of the fighter Count Dante in a trailer for his own documentary. Lessig acknowledged the use of the footage but minimized its length, importance, and visibility:

It is not disputed that Defendant Webb used a portion of the Footage in one of the trailers for his biographical documentary about Count Dante. That trailer, as well as a still image of the portion of the trailer containing the Footage, is already before the Court. In the trailer, the Footage runs for approximately fifteen seconds as part of a collage of images. The Footage appears in the background, with a photograph of Count Dante in the foreground. The Footage is also obscured in part by the text of a quotation by Count Dante. Although perhaps it can be inferred that one of the fighters is Count Dante, the other fighter is not mentioned or identified explicitly or by inference. The faces of both fighters are washed out and barely visible.

Here, too, in Ted Olson’s prevailing brief in Citizens United v. FEC he used an Although clause to acknowledges that the film “Hillary: The Movie” was distributed during Hillary Clinton’s campaign for president, but he stressed that the film did not “expressly advocate” her defeat:

In mid-2007, Citizens United began production of Hillary: The Movie, a biographical documentary about Senator Hillary Clinton, who was then a candidate to become the Democratic Party’s nominee for President. Although Senator Clinton’s candidacy was the backdrop for the 90-minute documentary, neither the movies narrator nor any of the individuals interviewed during the movie expressly advocated her election or defeat as President. The movie instead presents a critical assessment of Senator Clinton’s record as a U.S. Senator and as First Lady in order to educate viewers about her political background.

By showing confidence as you both concede bad facts and reassure wary readers, you will adopt a compelling and convincing voice while stopping your opponent from spinning those facts and beating you to the punch. As the late D.C. Circuit Chief Judge Patricia Wald once put it, “The facts give the fix.” Keep a poker face as you let them do their job!