What do you think litigators do? Their whole job is figuring out how to elicit, marshal, introduce and connect the facts that will prove their case. That’s just what being a trial lawyer is.
The facts are not just out there and whoever happens to have the better facts on their side wins. Litigators have to be able to identify and interrogate relevant facts, prepare witnesses and documents to introduce them, then shape them in a convincing enough way that they can argue the facts and law are on their side.
Hell, even appellate lawyering is really all about the facts in the end. We have legal doctrines and lines of authority for this or that legal proposition, but the letter of the law only receives its full shape in light of the various fact patterns they’ve been tested by. (This, by the way, is where the modern Supreme Court tends to show its cracks. Arguments before the Supreme Court are almost inevitably a step or two removed from the facts of the actual case that the Court is supposed to be adjudicating. Yes, appellate courts and the Supreme Court have to take into account that whatever they rule is going to have precedential effect and other courts will look to their decisions to guide their own work. But it’s striking how often like 7/9 Supremes deflect argument away from the particular facts of the case they agreed to review and focus on hypotheticals and “first principles” (which they don’t even agree on amongst themselves) and so on. Yet they always trumpet that Article III jurisdiction requires there to be a live case or controversy. Which they promptly themselves ignore. Can’t let, you know, actual judging get in the way of one’s shaping of the law!)
You start off strong but for the first two and a third paragraphs maybe about two and half paragraphs in total, you wrote we’re not actually in any disagreement. So… yes.
I’m not really co-signing the rest but I’m also not in any mood to argue about the off-topic jabs against SCOTUS at the moment.
I had just read the transcripts from yesterday’s oral arguments and was feeling annoyed at a longstanding complaint I have about SCOTUS (pre-dating the Roberts Court as well). Mea culpa.
The facts are not just out there and whoever happens to have the better facts on their side wins. Litigators have to be able to identify and interrogate relevant facts, prepare witnesses and documents to introduce them, then shape them in a convincing enough way that they can argue the facts and law are on their side.
Hell, even appellate lawyering is really all about the facts in the end. We have legal doctrines and lines of authority for this or that legal proposition, but the letter of the law only receives its full shape in light of the various fact patterns they’ve been tested by. (This, by the way, is where the modern Supreme Court tends to show its cracks. Arguments before the Supreme Court are almost inevitably a step or two removed from the facts of the actual case that the Court is supposed to be adjudicating. Yes, appellate courts and the Supreme Court have to take into account that whatever they rule is going to have precedential effect and other courts will look to their decisions to guide their own work. But it’s striking how often like 7/9 Supremes deflect argument away from the particular facts of the case they agreed to review and focus on hypotheticals and “first principles” (which they don’t even agree on amongst themselves) and so on. Yet they always trumpet that Article III jurisdiction requires there to be a live case or controversy. Which they promptly themselves ignore. Can’t let, you know, actual judging get in the way of one’s shaping of the law!)