How To Write a Brief, By Paul Clement

This amicus brief by Paul Clement on behalf of the American Beverage Association (the other, other ABA) in POM Wonderful v. Coca-Cola is a masterpiece. The formal legal question -- on which I express no opinion -- is whether a party can bring a suit under the Lanham Act (which governs false advertising) regarding a label of a product regulated under the Food, Drug, and Cosmetic Act. POM's lawsuit accuses Coca-Cola of mislabeling a drink as "Pomegranate Blueberry" juice when it contains just .3% pomegranate juice and .2% blueberry juice (it is 99% apple and grape juice).

And when you put it that way, it sounds really bad! There's an old saying amongst lawyers that when the law is on your side, pound on the law, and when the facts are on your side, pound on the facts (and when neither is on your side, pound on the table). These facts sound very bad for Coca-Cola (99% juices other than the two prominently displayed on the label), so the conventional wisdom would be to bang on the law and downplay the facts.

My theory of advocacy, however, has always been the opposite -- go on offense where your opponent thinks they're strongest. "Offense" is important -- the strategy only works if you argue that the point they think is their ace really, truly, obviously favors your own side. Even if you don't persuade the audience, it has a neutralizing effect -- it makes it seem like the issue is at best a single or a double for the other side rather than they're home run.

I digress. The point I want to make is that Clement starts with what seem to be awful facts, and deftly explains why labeling juices from the perspective of volume may not make a lot of sense. It is clear, lucid, and intuitive -- no small feat given how incongruous the position seems at first glance.

If one is looking for a model of how to write a brief, this is one to do it. It is a masterclass of the art.

The Only Winning Move Is Not To Play

Virginia AG Ken Cuccinelli has severed the state of Virginia's connection with King & Spaulding, which has been in the news for agreeing to, then withdrawing from, representation of the House of Representatives in the DOMA litigation. K&S partner Paul Clement then resigned in protest, and the whole thing has been a massive mess for the Atlanta-firm.

The consensus is that K&S withdrew under pressure from Coca-Cola, one of its biggest clients. Virginia is not as big a money-source as Coke, but the bigger point is that there is no winning move here for a large, wide-ranging firm like K&S. Once they agreed to represent the pro-DOMA side, they were doomed no matter what they did. I agree that they had an obligation (upon entering into representation) to see it to the end, but the only true winning move would have been not to get involved in the first place.

K&S Withdraws from DOMA Defense, Clement Resigns

The big gay rights news today is that the law firm King & Spaulding, which had previously signed on to defend the Defense of Marriage Act at the behest of House Republicans, has withdrawn its representation in the face of outrage by liberal and LGBT groups. A lot of folks had wondered whether K&S would face a backlash in its efforts to recruit new attorneys, as the current generation is quite hostile to homophobia and legally-sanctioned anti-gay discrimination. Former Solicitor General Paul Clement, who was to lead the DOMA defense, has resigned from K&S effective immediately, and will continue to defend DOMA at another firm (Bancroft PLLC).

While I was heartened to see that the political muscle of the pro-equality community has grown strong enough that it could provoke such a reaction, I admit some unease for K&S' decision and some sympathy for Clement's resignation. Regardless of whether K&S was correct to take this case in the first place -- and I too find it mystifying that K&S didn't see these problems a mile off -- once they agreed to do it, it's disconcerting to see them then withdraw under fire. As Clement noted in his resignation letter, "Defending unpopular positions is what lawyers do." There are lots of unpopular clients and positions out there, and they deserve representation.

Representing DOMA is kind of like representing a guy who robbed a convenience store. From an outsider's vantage point, you get him an attorney, work on the case diligently, and then hope the due process of the courts sees him convicted. Same with DOMA -- it deserves to have its day in court, and at the end of that day, it deserves to be struck down.

UPDATE: Clement is getting praise from across the legal profession, including from Clinton SG and liberal icon Seth Waxman (currently a partner at WilmerHale).