As it turns out, Chicago poet and journalist Carl
Sandburg is one of--if not the--first person to be
credited with an old piece of advice for lawyers:
If the facts are against you, argue the law. If the law is
against you, argue the facts. If the law and the facts are against
you, pound the table and yell like hell.
As well as sourcing Sandburg's quote, in his article for the
journal American Politics Research, Law,
Fact, and the Threat of Reversal From Above, University of
Alabama professor Joseph L. Smith uses the latest in
computer content analysis (basically, the use of algorithms to
categorize writing based on important recurring terms) to examine
administrative law opinions from 1925-2002 to test that advice.
More specifically, Professor Smith tested whether judges felt more
constrained by the facts of a case or the legal standard governing
it. His conclusion:
