A LITIGATOR S CRAFT: PERSUASION IN BRIEFING AND ORAL ARGUMENTS Professor Allen Blair
WE POLITELY MISUNDERSTAND OTHERS SO THAT THEY SHALL MISUNDERSTAND US IN RETURN. JOHANN WOLFGANG VON GOETHE
AD VOCACY Derived from Two Latin Terms: Ad - in favor of Voca - to speak to speak in favor of
RHETORIC Rhetoric is the craft of persuasion... in jury courts and in other mobs... and about things that are just and unjust Plato, Gorgias
General tips for briefs and oral arguments Introduce three foundational advocacy techniques Introduce a bit of cognitive theory relevant to advocacy
WRITTEN ADVOCACY Briefs need to provide value to a judge (or to judges) at three different stages of a case: 1. Introductory stage -- prep for oral arguments/conference 2. Evaluation stage -- oral arguments/conference/ reflection before decision 3. Ruling stage -- offering reasons justifying the ruling
WRITTEN ADVOCACY Briefs need to provide value to a judge (or to judges) at three different stages of a case: 1. Introductory stage -- prep for oral arguments/conference 2. Evaluation stage -- oral arguments/conference/ reflection before decision 3. Ruling stage -- offering reasons justifying the ruling
WRITTEN ADVOCACY Briefs cannot perform their functions if they are: 1. Convoluted 2. Factually or legally misleading 3. Rife with typographical, grammatical or punctuation errors
CONVOLUTED Time is valuable for all of us. Judges, in particular state district court judges and appellate judges, don t ever have enough time. As we learn to grasp complex ideas, we like to show off just how much we know. Clients and Judges (and your friends, neighbors, family members) don t care! The Wonders of Brevity I should want a new lease of life to read this through!... If I send a man to buy a horse for me, I expect him to tell me that horse s points -- not how many hairs he has in his tail! Abraham Lincoln after reading a congressional report on the development of a new gun.
CONVOLUTED The Wonders of Brevity Tip One: Get to the Point!
CONVOLUTED Lawyers often like the sound of their own voices. We know big words, so we like to use them. We mistake adjectives and adverbs for advocacy. The Elegance of Minimalism
CONVOLUTED The Elegance of Minimalism Tip Two: When in doubt, take it out!
CONVOLUTED Horrible! A successful showing by our client that his action of voluntarily reducing his income was due to his desire to avoid the stress of a large law firm should result in a reduction of his child-support obligation by the court.
CONVOLUTED Much Better! If our client shows that he voluntarily reduced his income to avoid the stress of a large law firm, the court should reduce his child-support obligation.
CONVOLUTED Beware of the nounification of language! Nounification Make reference to effectuate service initiate a lawsuit make an argument make mention of is in agreement is in compliance Simple Verb Refer to Serve Sue Argue Mention Agrees Complies
MISLEADING While simplicity matters, don t omit critical information! Remember, Judges not only need to be persuaded, but they need to justify a decision in your favor.
MISLEADING Tip Three: Know what matters and why!
TYPOS AND ERRORS Persuasion is, in part, about credibility. Careless errors reflect careless work. Careless work calls into doubt your credibility.
WHY THINK ABOUT ORAL ARGUMENTS? They can change a judge mind. The skills of quality oral advocacy apply in non-litigation contexts. Judge Myron Bright of the Eighth Circuit concluded that oral arguments altered judges on average 20% of the time. Lawyers advocate with their clients, colleagues, co-counsels, opposing counsels and third parties all the time.
SO WHAT MAKES A GREAT ORAL ARGUMENT?
TIP ONE: DON T BE A DUFUS! Respect The Judges time. Your opponents time. Your own time. Know the law, the facts, and what you want the court to do about them
TIP TWO: TREAT IT LIKE A CONVERSATION [W]e treat lawyers as a resource rather than as orators who should be heard out according to their own desires. Judge Myron Bright, Eight Circuit
It isn t just an interchange between counsel and each of the individual Justices. What is going on is also to some extent an exchange of information among the Justices themselves. Justice Antonin Scalia
TIP THREE: A DANCE OF CONCESSIONS Bend; do not break. Know what you need to get from the court to win. Be willing to concede the rest.
TIP THREE: A DANCE OF CONCESSIONS Bend; do not break. Know what you need to get from the court to win. Be willing to concede the rest.
THREE ADVOCACY TECHNIQUES
TECHNIQUE ONE: LEAD WITH A CONCLUSION This court is being asked to consider whether Ms. Williams should be bound to the contract that she has with Walker-Thomas Furniture Co. To decide this matter, the court will need to examine whether procedural and substantive unconscionability are present. The court should also consider whether public policy militates in favor of enforcing this contract. Ms. Williams should be bound to her contract with Walker-Thomas for three reasons. First, she knew or certainly should have known what the terms of the contract were and what the consequences of default would be. Second, she assented to these terms and the resulting reasonable benefits and risks. Finally, where, as here, a buyer knowingly and willingly consents to a contract, courts should not second guess the buyer s decision.
TECHNIQUE ONE: LEAD WITH A CONCLUSION LEGAL ARGUMENT The District Court erred as a matter of law and abused its discretion in granting AEGIS s request for an anti-suit injunction preventing NSP-Wisconsin from pursuing a pending law suit in Wisconsin. First, the District Court erred as a matter of law and abused its discretion by misapplying the standard that it used, the first-filed principle. Second, the District Court committed legal error because it applied the wrong legal standard for analyzing the propriety of anti-suit injunctions. I.! THE DISTRICT COURT MISAPPLIED THE FIRST-FILED PRINCIPLE WHEN GRANTING THE ANTI-SUIT INJUNCTION The Court erred by rigidly applying the first-filed principle in this preemptive declaratory judgment action. According to the January 6 Order, if... the parties and issues are similar, the court that first has jurisdiction over a case retains it and the sister court with concurrent jurisdiction should not interfere. (A at 10.) Although this generalized introduction to the first-filed principle is a valid starting point, the District Court erred by mechanically relying on it without any analysis of countervailing considerations.
TECHNIQUE TWO: RETURN TO A THEME What is this case really about? What was it that convinced you that your side deserves to win? Can you tie all the issues to an overriding legal theme? A frame is a psychological device that offers a perspective and manipulates salience in order to influence subsequent judgment. Offers a Perspective Manipulates salience Influences later judgment Manages the viewer's alignment in relation to the issue "75% lean" rather than "25% fat" Directs the viewer to consider certain features and ignore others blue collar or athletic The frame precedes a persuasive attempt The frame not only contains, it constrains -- frames help create the picture viewed
EXAMPLE Your honors, this case confirms one simple truth: a person s home is her sanctuary. Only the most compelling emergencies should permit law enforcement officers to burst into a citizen s home without a warrant. Without such a requirement, no person s home is safe.
HYPO Batsakis v. Demotsis Plaintiff sues Defendant for failing to pay $2,000 plus interest on a loan Plaintiff made to Defendant during WWII. The contract took place in Greece (axis controlled territory) and was to be repaid in the US. Plaintiff lent Defendant the equivalent of $25.
HYPOTHETICAL SITUTATION You re a lawyer representing an insured in an environmental insurance coverage dispute. You have received a settlement offer from the insurer, and you believe that the settlement is good for your client. If you want to convince your client to settle, should you focus on the benefits of the settlement or on the costs associated with passing up the settlement?
People simplify how they make decisions through the use of heuristics.
Subjective v. Objective Reality
% of drivers donating organs 100 80 60 40 20 0 4 Denmark 28 Netherlands 17 12 United Kingdom Germany 100 Austria 98 Belgium France 100 100 Hungary Poland 100 100 86 Portugal Sweden
Opt-in Check the People box below Don t if you Check want to participate in the organ the box donor program Opt-out Check the box People below Don t if you Check don t want to participate in the the organ box donor program
Defaults are powerful. (They become even more powerful as the number of alternatives increases.)
Status Quo Bias People tend to like the status quo, and they will demand quite a lot to depart from it. The endowment effect is a consequence of this bias.
Extremeness Aversion People are averse to extremes. Options are extreme in comparison with the other options presented (or readily available). Compromise Effects For instance, if presented with three alternatives at different prices, consumers will tend towards the middle option.
Availability Bias People tend to overestimate the risks of an incident when that sort of incident is available to their minds. For instance, after watching news coverage about a school shooting, parents tend to overestimate the risks that their children will be victims of a school shooting.
TECHNIQUE THREE: BEWARE OF INDIGNATION You re not a TV pundit. Most people can t pull of indignation without seeming either like a petulant kid or someone who is losing. The better tact, I think, is to remain professional, courteous, and use your facts, arguments, and theme to do the work -- keep an emotionally level keel. And, in any event, don t engage in ad hominem attacks agains opposing counsel.
The art of Advocacy is a process reflection on and use of the available means of persuasion (rhetoric) whereby we can reweave community and thus reconfigure the world and our relations within it.
IT IS ONLY AT CERTAIN MOMENTS OF O P P O RT U N I T Y T H AT T H E S T R E N G T H O F A W O R D MAY SWAY ALLIANCES AND DEMONSTRATE S O M E T H I N G, W H E R E V E RY, V E RY R A R E LY EVERYTHING ELSE BEING EQUAL, SOMEONE SPEAKS AND PERSUADES.