ADVOCACY – THE JUDGE'S VIEW V: TO PERSUADE A JUDGE THINK LIKE A JUDGE
This series looks at the views from judges around the world and the advice they give to advocates. Here we look at the article from J. Frederic Voros, jr for the Utah State Bar: To Persuade a Judge, Think Like a Judge. This is written by a judge in the Utah Court of Appeals and the post is aimed at appellate litigation in particular, most of the points are of general relevance. As ever the aim here is to persuade you to read the original article in full.
“…to persuade a judge, as to catch a thief, you must think like one.”
“Two years ago I was appearing before the court I now sit on. I am no smarter now.”
YOUR APPEAL IS THE JUDGE’S PROBLEM TO BE SOLVED
A general point here is the advocate must appreciate the very different way the judge looks at a case.
“Judges and lawyers approach an appeal in fundamentally different ways. From a lawyer’s point of view, the appeal is a contest to be won; from a judge’s point of view, the appeal is a problem to be solved. Consequently, the best way for a lawyer to win the contest is to show the judge how to solve the problem”.
THE KEY POINTS
There are 15 key points in the article. Some of them are specific to the jurisdiction in question. The key points are:-
Think of yourself as staff to the court
“I suggest that you think of yourself as threefourths advocate for your client and onefourth court staff. By court staff I mean an objective and reliable resource in the court’s decision-making process. We understand that you represent your client. But because you know the case and probably the law better than we do, we need your help in solving the appeal.”
Be candid with the court
“You will not help your cause by exaggerating the record or stretching precedent. Inevitably, some facts and cases will not support your position. Don’t tiptoe around these or bury them in footnotes; show us how to deal with them. In particular, appellants who ignore unfriendly facts or precedents in their opening brief (1) lose credibility with the court, (2) imply that the omitted facts or precedents are devastating, and (3) present a generous target for opposing counsel”
Remember who you are talking to
“By which I mean people – lawyers who wanted to be judges and were fortunate enough (from my point of view) to be nominated, appointed, and confirmed. Two years ago I was appearing before the court I now sit on. I am no smarter now.3 Judicial opinions speak in an authoritative voice and occasionally sound erudite. But remember that they are the product of a collaborative effort by people like you. I am neither as smart nor as learned as I may sound on paper. Bear this in mind when you decide how best to explain to me why you should win.”
“To paraphrase Albert Einstein, everything should be made as simple as possible, but no simpler”
Remember why it’s called a brief
“… contrary to what you might think, in most cases a long brief signals weakness, not strength. See King v. Gildersleeve, 21 P. 961, 962 (Cal. 1889) (“We are inclined to doubt the correctness of the ruling of the court below, on account of the extreme length of the brief of the learned counsel for respondent in its support. Knowing the abilities of counsel, and their accurate knowledge of the law, a brief of 85 pages, coming from them in support of a single ruling of the court below, casts great doubt upon such ruling.”).”
It is interesting that this has been a common theme of many of the judges whose work we have looked at.
“Insults usually boomerang. When you namecall or speculate on opposing counsel’s motives, the reader’s natural tendency, perversely enough perhaps, is to feel defensive for your opponents: surely they can’t be that bad; let’s just get on with business. On the other hand, deceptions deserve the light of day. See Louis Brandeis, Other People’s Money 62 (1933) (“Sunlight is said to be the best of disinfectants.…”). But don’t just tell us that the shyster on the other side distorted a witness’s testimony; show us. Juxtapose the witness’s testimony as it appears in opposing counsel’s brief with the same testimony as it appears in the record. We will see the contrast, and feel the outrage.”
On judges and advocacy
- Things lawyers do to annoy judges: edited highlights
- Advocacy – the judge’s view II: Useful guidance from Down Under.
- Advocacy – the judge’s view III: More Guidance from Canada
- Advocacy – the judge’s view IV – “Avoid Bullshit, smoke and mirrors” (oh and beware “well padded vanity”).
On written submissions
- Speculative skeleton arguments are of no assistance.
- Picking up bad citations: & skeleton arguments – still too long.
- Skeleton arguments: do them properly or you won’t get paid (the triquel).
- Skeleton arguments: if you don’t do them properly you won’t get paid.
- Drafting a skeleton or want to serve an additional skeleton argument? Then you had better read this
- Useless bundles; lengthy skeletons and judicial ire: The Court of Appeal rules inability to impose “old fashioned” sanctions..
- Skeleton arguments more examples online: You can have Cotton if you can’t have silk.
- Drafting skeleton arguments and notices of appeal: more examples online.