November 25, 2012

Judge Silberman on Acronyms: Use Sparingly

The Blog of Legal Times posted a helpful article last week on the liberal use of acronyms and abbreviations in legal writing. Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit doesn't like them. The article cites a June opinion in which Judge Silberman complained about the excessive use of acronyms by both sides of a case: "Here both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not," he wrote. The same frustration surfaced in court last week, according to Legal Times, as the Judge chided counsel in a different case for using arcane acronyms.

The Judge makes a valuable point. A cardinal rule of legal writing is to respect your audience's need for clarity. In most instances, the judge (or judges) hearing your case will not be as familiar with the abbreviations and jargon of the matter as you are. Of course, acronyms are handy; they often seem to make sentences read more smoothly. But there is always a way to avoid them--especially if they will confuse or annoy the court.

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March 15, 2012

The best way to refute: know your opponents' case better than they do

When Abraham Lincoln was asked his secret for winning lawsuits, he reportedly replied that he understood the opposition case better than the opposition understood its own case. Lincoln was articulating a basic truth about trial strategy: that winning involves the art of immunization and refutation. In simplest terms, this means persuading the judge and jury that your argument makes more sense than the opposition’s – something you can only do when you know the opposition’s case as well as your own. Yet immunization and direct refutation are two important aspects of persuasion that -- while understood by many -- are mastered by few.

In refutation, you reveal weaknesses in your opponent’s argument in a way that makes them unacceptable to the judge or jury. To prepare a good refutation, consider all possible points you can use to undermine your opponent’s case. Use “blocking” to identify the best ones. Blocking involves writing the opponent’s main points in an outline or diagram form, followed by a list of refutation points. Once you have blocked your opponent’s argument, you can more easily select the points you need to refute and the method of refutation that will work best. Be selective in choosing what to refute: you want to go with the strongest points and not over-saturate your listener.

Methods of refutation can include immunization, direct response and rebuttal. Immunization involves introducing your own case’s weak points before your opponent has the chance to introduce them for you. Proper immunization shows your listener that you have considered all sides of the case – both sides’ strengths and weaknesses -- and are convinced that your position is the only one that makes sense. When you are the first to present an argument, provide an explanation of any week points in your case up front. This often has the added benefit of putting your opponent off balance so that he or she cannot present an effective response.

There are two basic types of immunization: forewarning and inoculation. Forewarning involves alerting your listener to what you anticipate your adversary will argue. In a personal injury case where contributory negligence is a defense, you might argue: “The defense will contend that Mr. Smith was also negligent and that his contributory negligence bars his right to recover from the defendants.” Alerting your listener to the opposing point of view prepares your listener to absorb the opponent’s attack without abandoning your point of view.

Inoculation involves forewarning followed by some explanation of why the adversary’s argument is defective. This fuller explanation can be reserved for a subsequent time, such as during rebuttal, but it is sometimes better to give a full explanation at the outset of your argument. This is particularly true when you know the defense is going to raise a crucial issue in the case and you want your listener to hear your version and explanation first.

Before you attack your opponent’s argument, however, you must first have built a superior case of your own. Almost all refutation involves not only destroying your opponent’s view of the case but also substituting your own theme or version. Exceptions are limited but do exist. For example, if you are arguing that your opponent has failed to satisfy a burden of proof, you may not need to present a counterpoint.

When you create a positive theory you do more than simply give your listener a more believable alternative scenario. A positive theory may also help persuade the judge or jury that the other side’s burden of proof has not been met. In a case where contributory negligence bars recovery, a plaintiff may want to emphasize the defendant’s own negligence as she argues that she was not contributorily negligent. The theory here is that the stronger your argument regarding the defendant’s negligence, the less likely the judge or jury will find the plaintiff’s negligence contributed to the event.

As you study your opponent’s case, consider whether the opposing side is staying true to the facts or running contrary to the evidence. If your opponent’s argument plays fast and loose with documents or testimony at key points, prepare to demonstrate this to the listener. This is a key part of refutation, and it is important in these instances to use a direct and forceful approach: “Don Smith never testified that the light was green. Let us review what Don Smith actually said.” That said, do not select insignificant factual errors for attack. Doing so may annoy your listeners and come across as a waste of time.

As part of your direct response, you may also find opportunities to challenge your opponent’s evidence. For example, you can show an opposition witness’s bias by revealing that an alibi witness is the defendant’s mother or spouse, or that the government’s witness is testifying as the result of a plea bargain.

You may also find opportunities to demonstrate that your opponent’s version of the case is improbable or that it is based on irrelevancies or minor evidence that has been given undue weight. Additionally, you can also point out where significant evidence has been ignored by the other side. Take the following example: say that during argument in a civil case for assault, your opponent argues that the plaintiff was the first aggressor. However, your opponent avoids sharing the fact that before arriving at the scene, the defendant went home and searched for an old hunting knife that he brought with him to the scene. Clearly, you would argue that your opponent ignored the very conduct that shows the defendant’s intent.

There are many more ways to refute opposing points in a trial. In my book, The 12 Secrets of Persuasive Argument, I review them in more detail. The bottom line is, study your opponent’s case carefully. It could be the difference between winning your case and losing.

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March 17, 2011

Frivolous lawsuits and Rule 11: Is the cure worse than the problem?

Few would argue the merits of frivolous lawsuits, but the “cure” being proposed in Congress this week is far worse than the disease. One only needs to journey back in history a few decades to get a preview of what could easily happen again if the groups pushing for tougher measures get their way in the fight against frivolous lawsuits.

At the heart of the battle is Rule 11 of the Federal Rules of Civil Procedure. Originally drafted more than 70 years ago, it has been revised twice in the last thirty years: first to toughen up sanctions against attorneys filing frivolous lawsuits, and a decade later to mitigate the damage caused by the first revision. In today’s version of Rule 11, judges have some latitude in determining whether or not to impose attorney sanctions, and lawyers in civil cases are granted a 21-day “safe harbor” period during which time they can withdraw a lawsuit following a sanctions motion.

This week, though, lobbyists representing two of the country’s most powerful small-business interest groups have testified on Capitol Hill that they want to see Rule 11 brought back to its 1983 state – that is, the time of the first, lamentable revision. Their argument: that in its current form, Rule 11 is creating a chilling effect on small businesses. These lobbyists are asking Congress to reinstate mandatory attorney sanctions under Rule 11 and remove the rule’s provision granting the 21-day withdrawal period. What these small-business interest groups may not realize is that the Rule 11 of today is far less “chilling” to the American judicial system than the Rule 11 to which they want to revert.

University of Houston law professor Lonny Hoffman, who testified against the proposed changes, put it best, recalling the chaos that ensued after Rule 11 was first amended in 1983: “Sanctions practice took on a life of its own…with lawyers routinely battling over the minutiae of all the new obligations imposed.” Indeed, rather than reduce litigation, Rule 11 added both time and expense to it.

In his testimony, Hoffman cited another legal scholar, Georgene Vairo, who wrote about the “avalanche” of satellite litigation unleashed by the 1983 revisions, including one study that found that in a one-year period almost 55% of respondents had experienced either formal or informal threats of Rule 11 sanctions.

Even more disturbing about Rule 11, particularly after it was amended in 1983 and before it was revised again in 1993, was that those most hurt by it were low-income civil rights and employment discrimination plaintiffs. These were the people least likely to have the funds to keep the battle going. In effect, Rule 11 became an intimidation technique and had a chilling effect on free access to the courts. Even in its current form, Rule 11 suffers similar criticisms. It also encroaches upon the American rule disfavoring the award of counsel fees for the losing party.

When, in 1993, Congress revised Rule 11 to give judges more latitude in imposing sanctions and to create the safe-harbor provision, Congress was attempting to correct much of the damage of Rule 11 in its earlier form. Now groups representing small businesses want to have Rule 11 brought back to those glory days of the mid-1980s?

Before we rush to do that, we should pause and reflect on history. After all, as American philosopher George Santayana once said, “ Those who do not learn from history are doomed to repeat it.”

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February 2, 2011

Jurors' Facial Cues...and You

“Beware of the Smiling Juror,” warns Melissa Gomez, a jury consultant blogging on The Legal Intelligencer website last week. Ms. Gomez points out, quite accurately, that trying to read jurors’ body language and other non-verbal cues is both “fruitless and tiring.” With regard to the smiling juror, she warns, we don’t know whether that person is grinning because he likes what we are saying, or because he can’t wait to stick it to us when jury deliberations begin.

Most disturbing about a trial lawyer trying to read jurors’ facial cues and body language is the potential it has to distract the lawyer from what’s most important: presenting one’s case as clearly, cleanly and fully as possible. Every time you look over to see if your jurors are nodding along with your argument, you run the risk of being thrown off course.

Rather than attempt to read facial cues, focus on getting to know your jurors before the action begins. Get the jury list in advance of trial. By reviewing the list, you can learn about the types of people you might find on your jury. You may observe, for example, that many of those on the list are retired farmers, or nurses, or teachers, as opposed to businesspeople. Read the questionnaires that many jurisdictions have jurors complete. Research your jurors online. All this knowledge will help you ultimately tailor your argument to your listeners. Be vigilant about using voir dire to “unpick” the potential jurors most likely to side against your client.

Jury consultants can help at many stages of the process. Not only can they assist in suggesting the best way to present evidence to the jury, but they can also help select jurors that are likely to be most receptive to your arguments. Once trial begins, you should have enough confidence in your preparation that you shouldn’t be thrown off by a juror’s crossed arms or unexpectedly sheepish expression.

That said, don’t ignore your jurors’ non-verbal cues completely, especially when their demeanor changes dramatically from one day to the next. In November 2010, I blogged about a case in which the defense noticed a juror’s sudden change in demeanor. The defense went back and did further investigation into this juror’s background. In doing so, the defense found she had much to hide and asked the judge to remove her from the trial. The judge did so, and, in the end, the defense won the case.

Still, proper research is a better bet overall than trying to figure out what that juror’s smile, smirk or grimace signifies. It may just mean that he had a lousy breakfast.

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November 10, 2010

Why You Need to Know Your Jury

Whatever your opinion about controversial filmmaker Michael Moore, he did recently offer some unwittingly sage advice to trial lawyers everywhere: He reminded us why it's important to conduct juror research early and often. Last week, a judge in New York dismissed a juror in the final throes of a case against banking giant Citigroup, after it was discovered that the juror was listed in the credits of Moore’s 2009 documentary that berated Wall Street and the banking industry. Citigroup ultimately prevailed in the case but the question of the biased juror made for an awkward, if unavoidable, situation.

When reached by Bloomberg News for comment about the judge’s decision to remove the juror, Moore, who said the juror didn’t work on the film, added, “You’ve got to feel sorry for Citigroup. They’re paying all this money to their attorneys and they didn’t even bother to Google her ‘til last night.”

The filmmaker may have been too severe. Solid information about jurors' biases is generally hard to come by, even when online research can be done during voir dire. What’s more, it is not known how this juror answered questions during voir dire or how cleverly she hid any biases up to that late stage in the trial.

It’s also important to point out that Citigroup’s lawyers were wisely attentive to this juror’s behavior during the trial and that they smartly took action immediately upon sensing a subtle change in her demeanor. As the judge commented after deciding to dismiss her, she answered questions in a manner that struck him as deceptive. She may well have withheld important facts and biases just to be seated on the jury.

That said, the incident emphasizes the cardinal rule of persuasion: know your audience as well as you can. We have Michael Moore to thank for the reminder.

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October 19, 2010

Is Sarcasm Good Courtroom Strategy?

How much sarcasm is too much in court? That very question was brought before an appellate court in Connecticut earlier this month when a public defender challenged his client’s guilty verdict, claiming the defendant’s right to a fair trial was compromised by the prosecutor’s aggressively sarcastic style.

According to the Connecticut Law Tribune, the prosecutor used the phrase “lo and behold,” several times and prefaced questions with a heavily emphasized, “You claim….” He also announced, “Good luck for you,” when the defendant testified that he obtained his gun when it happened to fall out of a relative’s pocket.

Though the appellate court upheld the guilty verdict – ruling that sarcasm does not constitute an appeal – a good trial lawyer should proceed with caution when playing the sarcasm hand.

Though there is some case law indicating that a ruling could be overturned if the sarcasm is deemed excessive, your goal shouldn’t be to come too close to that line. You can’t know for sure how the jury will react to your sarcastic tone. Certainly, you don’t want to appear to abuse or bully the witness and lose the jury’s respect. Your goal, particularly in a cross-examination, is to control the witness and if appropriate, to discredit the witness’s testimony, but to do it in a more restrained way than by resorting to sarcasm.

A skillful trial lawyer ought to be able to lead a witness into revealing his foolishness or mendacity without directly mocking him. When you have an adverse witness that has made an improbable claim on direct, for instance, conduct the cross in such a way that you allow him to emphasize the very improbability of the testimony. Repeating back the witness’s hard-to-believe statements can help the jury focus on just how unlikely they really are: “So, the gun just fell out of your relative’s pocket, right on the floor of the living room, correct? And you just picked it up and put it in your pocket, correct?” can ultimately sway the jury in your favor, whether or not you add a sarcastic side note – and you won’t risk having yourself branded a bully.

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September 3, 2010

Secrets of Persuading A Jury

crowdscene.jpg It's no secret that the general public has a low opinion of lawyers. That means you – as a trial lawyer – are at a disadvantage with a jury before you’ve even uttered your first syllable in court. Nevertheless, there are steps you can take to diminish jurors’ skepticism about you and your case.

For one thing, refrain from calling the party you represent your “client.” Always use the person’s name. Every time you say “my client,” you remind the jury of your role as a “hired gun.” Obviously the jury knows this is your role, but it certainly doesn’t need emphasizing.

Also, in court as in life, honesty is the best policy. Don’t try to conceal negative facts about your case: confront them head-on. Not only does that enhance your personal credibility, but it also minimizes the impact of those facts. If the jury doesn’t hear about the weaknesses of your case until the other side takes to the floor, your integrity will be questioned and the bad news that’s delivered by the other side will come across as even more incriminating.

Speak to the jury expressly in terms of the truth of the circumstances, and your hope for a fair and just resolution of the dispute. By talking about truth and fairness as shared values, you reinforce in the jury’s mind your own adherence to these values. As part of the same theme, avoid asserting facts that the jury is unlikely to believe. It’s better to omit details that will only undermine your credibility than confront a jury with information that just doesn’t sound plausible, regardless of its authenticity.

Finally, be nice. This may be easier said than done. The New York Times observed, “One reason companies lose lawsuits is that they are represented by obnoxious counsel.” So smile. Be civil. Never talk down to your audience. Use voir dire to establish rapport with jurors. And never appear hostile to the opposing side.

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March 11, 2010

Classical Rhetoric and the Modern Trial Lawyer

The new issue of Litigation Magazine includes an article on classical rhetoric and its value to trial lawyers by JoAnne A. Epps (a professor and dean of the Temple University Beasley School of Law), Ronald J. Waicukauski (of Price Waicukauski & Riley, LLC, in Indianapolis) and yours truly. Click below to read the full article, and you'll find all the classical rhetoric you need at Amazon.com.

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November 25, 2009

"12 Secrets" Interview with Your ABA

This article in the November issue of Your ABA provides an overview of The 12 Secrets of Persuasion, a book I co-authored with JoAnne Epps and Ronald Waicukauski.

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October 22, 2009

Basic Tips for a Persuasive Argument

In The 12 Secrets of Persuasive Argument, JoAnne A. Epps, Ronald J. Waicukauski and I identify twelve fundamental issues in formulating an argument; some of which one tend to think about less than others.

While most of us are aware of a few basic tips on successful arguments, like gathering appropriate, convincing evidence, focusing your goal, and maximizing delivery, it’s also important to pay attention to some of the more subtle elements of your particular situation. Strategy involves more than fact-gathering; there is the importance of emotion, style, and an engaging manner of speaking. If you want to set yourself apart from every other litigator in the field, you need to be keenly aware of the subtleties and complexities of the modern persuasive argument.

One of the things I think that’s ultimately most important in relaying an argument is the way you tell it. You can have all of the logical reasoning and unquestionable facts you want, but an audience won’t be persuaded without a little something more. Although a lot of us think of lawyer’s presentations as a performance, we need to really think about what that means. You need to appear as a personality, someone the audience can relate to and be interested in. You don’t have to tell jokes (although you could), but it helps to make your argument more personal. Relate the issue to yourself, or make allusions that your audience can follow, too. A jury is going to respond much more favorably to an advocate they perceive as being relatable, rather than some coldly logical litigator – and that favorable climate is going to make them a lot more receptive to any argument you’re going to make.

Ultimately, remember that you only get one first impression – so whatever tactic you choose to take in your presentation, be energetic, enthusiastic, and mindful of your objective.

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April 28, 2009

Breaking The Spell

When a theme is powerfully presented, a lawyer can cast a spell over a jury. Whenever a spell is created by opposing counsel, it must be broken as soon as possible.

To do so in an opening, you may want to invoke a dramatic statement that shifts attention to your case, the theme of which is compellingly distinct from that of the opposing counsel’s. For example, in a case alleging sexual harassment the defense began as follows: “Ladies and gentlemen, this case will demonstrate that just as it is important to eliminate sexual harassment in the workplace, it is equally important to eliminate false claims of harassment, which is exactly what we have here today.”

Other techniques of introduction include clearly stating your purpose or asking a question central to the case. For example: “The government is going to ask you to take away the freedom of Sergeant Smith for defending our freedom. … Now, what crime did he commit? His military working dog barked at people.” (The Baltimore Sun, March 14, 2006, quoting Capt. Jason Duncan in the opening for the defense of Sgt. Michael J. Smith in the Abu Ghraib prison case.) You can also begin by paying a compliment to the jury or appealing to the jury’s sense of self-importance: “In deciding this case you will be establishing the industry standard for the next 20 years.” Avoid introducing your case by stating that the opening cannot be considered as evidence. This only suggests that the jury should not listen to you and that what you are about to say is unimportant.

Because your listeners’ impressions of you bear on your persuasiveness, within the first five minutes of the opening you should ingratiate yourself with the jury. This isn’t hard to do. A courteous smile and a word of gratitude can help you establish much-needed rapport. There are different opinions about whether you should thank the jury for its attention during the opening, but I believe doing so can help humanize you and your client. A little courtesy can go a long way.

Ideally, within the first few minutes of your opening statement, each juror will have a favorable impression of you and a clear understanding of your overarching theme. Such themes are vital. In addition to drawing attention to your case, they can give the jurors a figurative lens through which to view all the information that is to follow and help them organize it as you wish them to.

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April 10, 2009

Moral Emotions and Persuasion

Yesterday the New York Times ran a fascinating column from David Brooks on the concept of "moral emotions." Citing recent studies by neuroscientists and others, the column suggests that the moral reasoning we learn in philosophy classes is merely an "aesthetic" justification for instinctive convictions we have about right and wrong. In the same way a bad smell repels, moral error repels. We know beauty when we see it; so, too, with moral goodness. Moral decisions, Brooks suggests, are driven by emotion.

Trial lawyers should familiarize themselves with the research Brooks cites. It matters to our profession, though I question whether it will change how we argue cases. Skilled advocates know, and have known for centuries, that a key component or persuasion is pathos. In speaking to juries, we always appeal to emotions. As Abraham Lincoln said during his trial lawyer days, to persuade a person, one first has to capture the heart. If a case concerns a traffic accident, we describe the wreckage in vivid detail or speak movingly of the plaintiff's struggle to walk afterwards. This is common, effective if not overwrought, and often wins verdicts.

But some lawyers concentrate primarily on logos. If the research Brooks cites stands the test of time, logic in legal argumentation may come to be seen as merely the "window-dressing" for what we know by instinct to be right or wrong.

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October 21, 2008

The Ted Stevens Trial and the Lesson of the Memorable Image

There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2,695 vibrating Shiatsu massage lounger from Brookstone.

Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250,000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.

To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."

The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:

Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.

Continue reading "The Ted Stevens Trial and the Lesson of the Memorable Image" »

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October 7, 2008

The Art of Evading Questions

The Washington Post had an interesting piece yesterday on the art of evading questions. The story contrasts Alaska Governor Sarah Palin’s blunt refusal to answer questions during the VP debate last week with Obama, Biden and McCain’s more subtle techniques of evasion.

For advocates caught between a rock and a rhetorical hard place, the article might offer some helpful tips. But judges asking questions in court won’t be fooled the way “Joe six-pack” might. If you have no good answer for a question from the Bench, it is probably wiser to err on the side of honesty, frankly admitting that you cannot respond fully to the question at this time but will submit a supplemental memorandum if the court desires, or state "I am not sure but under the circumstances the answer could only be..." When pushed against the wall you might state, "while I am not certain, my guess would be..."

Best solution, be prepared and know your subject matter. Whatever you do, don't bluff. An evasive answer, even as artful a dodge as Obama’s answer cited in the Post article, will hurt your ethos with a sophisticated listener.

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September 23, 2008

Fallacious Arguments

For those who plan to tune in to the presidential debate this Friday, here is a cheat sheet on some common logical fallacies. One can only hope these two fine candidates will steer clear of such foibles, but I, for one, am not holding my breath.

Slippery Slope

The “slippery slope” argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way.

For instance, one candidate told a radio show that choosing a vice president based on certain non-negotiable positions would send him down a “slippery slope.”

On the other hand, sometimes the slippery slope does exist and can be a legitimate basis for an argument. When you hear language like “opening the floodgates” and “slippery slope” your job is to make certain that the argument is true.


Compound Question

A question like, “Isn’t America tired of Democrats wanting to raise taxes?” is a compound question because it actually involves two or more issues that cannot be accurately answered with a single response. It assumes that Democrats have always wanted to raise taxes and also that you may have a position on the issue. The best response to a compound question is to point out that the questioner has made a false or unwarranted assumption.

Continue reading "Fallacious Arguments" »

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June 12, 2008

Researching judges

More on the subject of researching judges:

In addition to reading prior opinions and talking with former law clerks, court personnel, and other attorneys about the judge's manner and preferences, be sure to observe the jurist in court, particularly if you are presenting a case before him/her for the first time. There is no substitute for this firsthand knowledge.

Observe the judge's style, what s/he seems to like and dislike, how s/he relies on other cases. Then, tailor your presentation to these preferences. (Without, of course, compromising your own natural style.)

By way of example, consider the story of a young trial lawyer defending a criminal assault case.

Continue reading "Researching judges" »

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June 10, 2008

Communicating with Judges at Trial

The last post touched on writing for judges. Now let's consider prepping for an appearance in court. According to the receiver-centered school of rhetoric, the more you know about the jurist's attitudes, values, personality and background, the more effective an argument you can fashion.

How do you research a judge? To begin with, read all relevant opinions and other writings to gain an appreciation of the judge's views. If those views differ from the position you plan to present in court, be ready to acknowledge this difference, as a show of respect, and then explain why the jurist should hear you out. Think of the potential embarrassment if you started arguing your point, ignoring the court's standing on the matter. That kind oversight will be detrimental to your ethos in many cases.

Second, you will need insight into the judge's mannerisms, style and idiosyncrasies. For example, will the judge be receptive to your moving away from the lectern? Will she have read your brief before oral argument? How much time should you devote to the facts or to the questions presented? Does the judge have a long or short attention span? Does he pepper counsel with many questions? Reading opinions won't provide answers to questions like these.

Continue reading "Communicating with Judges at Trial" »

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June 3, 2008

Writing for Judges

It's obvious that attorneys should research judges before they argue before them, and that they should write their briefs with the judges' philosophies and predilections in mind. Why, then, do judges remain so frustrated with how lawyers write motions?

U.S. Supreme Court Justice Antonin Scalia apparently feels so strongly about the subject of legal writing that he's devoted much of his new book to it (Making Your Case: The Art of Persuading Cases). If you haven't time to read the book, you might check out this older article, published in 2002 by Georgetown law professor Kristen K. Robbins Tiscione. The piece summarizes the results of an unusual survey of federal judges on the subject of legal writing. Three hundred and fifty-five judges took part in September 1999, and their collective responses portray a judiciary that is a bit fed-up with long-winded briefs that are nonetheless lacking crucial legal analysis.

Continue reading "Writing for Judges" »

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June 1, 2008

Persuasion is Not a One-way Street

Persuasion technique is often taught in such a way as to focus your attention on yourself—your rhetoric, your skill, your arguments, your persona. Don’t be mistaken: rhetoric is at least a two-way street. Any argument you offer has several components—you (the messenger), the content of what you have to say, the medium, and the audience. The most important of these, and the least predictable, is the last.

In the context of litigation, members of the audience (jurors and judges) determine your client’s fate. To succeed, you have to understand them as well as possible and then tailor your argument accordingly. That’s what’s called a “receiver-centered” approach, and in my view it’s fundamental to success.

In an earlier book (The Winning Argument), my co-authors and I quoted an old story about an Irish barrister representing a shepherd before the high court of Great Britain. During the argument, a member of the court commented: “I’m sure your client is familiar with the doctrine of res ipsa loquitur.” The lawyer responded, “Yes, my Lord, in Killarney, where my client tends his flock of sheep, they speak of little else.”

Lawyers err in this fashion every day. They assume their audiences understand too much or too little. They speak over or under the heads of jurors. They bore judges with tedious, irrelevant details, or irritate them with inappropriately bombastic rhetoric.

Why does this happen? Attorneys prepare their arguments in the privacy of their offices surrounded by colleagues who speak their language and often share common backgrounds. Inside this bubble, they spend hours upon hours perfecting the intricacies of written and oral arguments, gradually slipping into the illusion that this rhetoric is theirs. This is a mistake of ownership. A legal argument does not belong to the attorney who makes it. It belongs to the court. Once uttered, it exists as a public expression that will be received, decoded and judged by those who hear it.

In other words, the “receivers” are not passive receptacles for rhetoric. In decoding your argument, the audience is as much involved in creating its meaning as you are. When you use the word “home,” for instance, you may associate it with a tranquil country cottage while your listener may envision a high-rise hovel fraught with tension and resentments.

According to Aristotle, “the whole affair of rhetoric is the impression to be made upon an audience.” If you believe this is true, and I do, then you will nimbly shape your rhetoric to suit the receiver, be it a judge (in a motion), a jury (at trial), or the opposing party (in negotiating a settlement).

In my next post, I’ll focus on the first of these, the judge.

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