ADVOCACY – THE JUDGE’S VIEW: SERIES 2, PART 2: BEING PERSUASIVE: “CONVOLUTED ARGUMENTS ARE SLEEPING PILLS ON PAPER”
The second post in this series takes us to Washington. A detailed article by Judge Stephen J. Dwyer, Leonard J. Feldman & Ryan P. McBridet called “How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two Lawyers”. Remember the purpose of this post is to persuade you to read the original. Although this was written in a different legal context there is much to learn from the key points the authors make.
The authors are talking about the preparation of “briefs”. These are documents that are much more weighty and lengthy than skeleton arguments. However, after bearing these cultural differences in mind, the seven guidelines apply across all fields of advocacy. I have taken selected highlights here.
SEVEN KEY POINTS
A. Begin Your Brief with a Compelling Recitation of the Relevant Facts
“The trick here, of course, is to present all the relevant facts while, at the same time, highlighting the facts (or absence of facts) that support your theme of the case and your legal arguments. Subtlety and accuracy are critical”
B. Acknowledge the Applicable Legal Standard and Use It to Your Benefit
“…most lawyers blow right through what is typically the very first argument section of the brief-the applicable legal standard-without employing any advocacy whatsoever. Do not miss this opportunity. The controlling legal standard not only tells the court how your arguments must be evaluated, it is also the first step in convincing the court why you should win. “
C. Carefully Pick Your Strongest Arguments
“A persuasive brief should include persuasive arguments and only persuasive arguments. More is definitely not better in written advocacy, especially when crafting persuasive legal briefs. “
D. Present Your Arguments Logically
“After you have identified the most persuasive arguments and dropped the rest, it is equally important to present your arguments in a logical manner. If this is done correctly, one point flows from another, arguments build on facts, and the arguments (hopefully) compel the result you want.”
E. Present Your Arguments Simply and Concisely
“A persuasive brief also expresses arguments in a simple and concise manner. Addressing this issue, Judge Kozinski notes that “simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.”
F. Be Accurate, Fair, and Even-Handed
“A persuasive brief is also even-handed in its presentation of relevant facts and controlling legal principles. A caustic tone or needlessly antagonistic rhetoric, on the other hand, detracts from a briefs persuasiveness. If you have a truly compelling argument, there is no need to disparage your opponent or your opponents’ arguments in order to prevail… very little is added by using terms like “preposterous,” “absurd,” or “silly.” “
- 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”).
- Advocacy – the judge’s view V: to persuade a judge think like a judge.
- Advocacy – the judge’s view VI: How a judge assesses witness evidence
- Advocacy – the judge’s view VII: Witness statements – short and sweet is best.
- Advocacy – the judge’s view VIII: “Credibility is all you have”.
- Advocacy – the judge’s view IX : What you wear matters.
- Advocacy – the Judge’s view X: 10 key points from around the worl