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”

RHETORICRhetoric 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

CONVOLUTEDTime 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

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.

Horrible!

CONVOLUTED

If our client shows that he voluntarily reduced his income to avoid the stress of a large law firm, the courtshould reduce his child-support obligation.

Much Better!

CONVOLUTED

Beware of the nounification of language!

Nounification Simple VerbMake reference toeffectuate serviceinitiate a lawsuitmake an argumentmake mention ofis in agreementis in compliance

Refer toServeSueArgueMentionAgreesComplies

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?

T I P O N E :

RespectThe Judges’ time.

Your opponents’ time.

Your own time.

Know the law, the facts, and what you want the court to do about them

D O N ’ T B E A D U F U S !

T I P T W O :

“[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

T R E AT I T L I K E A C O N V E R S AT I O N

“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

T I P T H R E E :

Bend; do not break.

Know what you need to get from the court to win.

Be willing to concede the rest.

A D A N C E O F C O N C E S S I O N S

T I P T H R E E :

Bend; do not break.

Know what you need to get from the court to win.

Be willing to concede the rest.

A D A N C E O F C O N C E S S I O N S

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 ARGUMENTThe 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 INJUNCTIONThe 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 aOffers aPerspectivePerspective

• Manages the viewer's alignment in relation tothe issue

• "75% lean" rather than "25% fat"

ManipulatesManipulatessaliencesalience

• Directs the viewer to consider certain featuresand ignore others

• “blue collar” or “athletic”

Influences laterInfluences laterjudgmentjudgment

• 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.”

HYPOBatsakis 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

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People Don’t Check the box

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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 BiasPeople 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

INDIGNATIONYou’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.

I T I S O N LY AT C E RTA I N M O M E N T S O F 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

M AY S WAY A L L I A N C E S A N D D E M O N S T R AT E 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

E V E RY T H I N G E L S E B E I N G E Q U A L , S O M E O N E S P E A K S A N D P E R S U A D E S .