Mary Trevor. Many of the techniques we will discuss apply to both written and oral advocacy We’ll start will concepts applicable to both, then move.

Mary Trevor

Many of the techniques we will discuss apply to both written and oral advocacy

We’ll start will concepts applicable to both, then move on to differences

The concepts we discuss today, overall, will generally apply regardless of whether the persuasion is happening at the trial (motion memo, aka trial brief) or appellate level (appellate brief)

Appellate work involves some additional components that we will not cover here, but the basic persuasion techniques remain the same

Ancient Philosophy—Aristotle:

Rhetoric—The art of persuasion

http://www.youtube.com/watch?v=x4tTugqBkJU

Pair up: Discuss some time recently when you were persuaded (or successfully persuaded someone) to do something, or perhaps were influenced in your thinking (Super Bowl ads? Political campaign?). Which rhetorical art(s) was/were used? Were they used successfully?

Use of rhetoric depends in part on Kairos (setting) and Telos (purpose)

Our setting: court Our purpose: convince a judge

Logos—the substance of what you say Ethos—your credibility as the

messenger Pathos—your appeal to your audience’s

values, needs, and emotions

What judges say: “[Y]our arguments must make

logical sense. Your legal and factual premises must be well founded, and your reasoning must logically compel your conclusion.”**

** Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges xxiii (2008)

What judges say: “An ever-present factor, . . . , and

one you can influence, is the human proclivity to be more receptive to argument from a person who is both trusted and liked. . . . Trust is lost by dissembling or conveying false information.”**

** Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges xxiii (2008)

What judges say: “[Absent other controlling factors], all

judges would agree that the decisions must be driven by (1) fairness to the litigants and a socially desirable result in the case at hand, and (2) adoption of a legal rule that will provide fairness, socially desirable results, and predictability in future cases.”**

**Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges xxi-xxii (2008)

Goals How do we achieve them? Persuasion

tools Look to additional fields for the tools:

Communications and psychology

Storytellers

Legal writers

Communication, psychology, and other fields give us “heuristics”—tools for promoting ethos (credibility) and generally for being persuasive

As we experience persuasion and influence from childhood to adulthood, we subconsciously tend to develop positive responses (some call them “mental shortcuts”) to certain ways that people present information

Understanding these responses can help us present information in ways to make its favorable reception more likely

Remember, judges are people, too! Many of the techniques used in legal writing are based in part on heuristics.

Primacy and Recency –People tend to remember best what they hear/read first, and what they hear/read

last

►How does this apply to advocacy?--Open and close documents,

presentations, and sections within the document or presentation, with your strongest points--the ones you want your

audience to remember--“Sandwich” unhelpful material in the middle of documents and sections

Availability Bias, Status Quo Bias, & AnchoringPeople are more readily persuaded if there is a familiar point of comparison to support a point, & people are more comfortable deciding in favor of the status quo than changing (logos)

►How does this apply to advocacy?--Use case comparisons (analogies and

distinctions) to support your arguments--Stress, overall, the consistency of your

arguments with the rule of law, precedent, and policy: it’s how our legal system works, and it makes the judge more comfortable about deciding for you

Extremeness Aversion –People are uncomfortable if positions are

pushed too hard: don’t overdo

►How does this apply to advocacy?--Accept the limits of your case; do not push

arguments more than the facts and the law support

--Avoid saying that something is “clear” or “obvious”—you would not be in court if it were

--Remember that judges especially (but not exclusively) value logos; pathos without proper support will backfire

Contrast Effects – Make something appear less problematic by

pairing it (offsetting it) with something favorable Make something appear less problematic by

contrasting it with something worse►How does this apply to advocacy?

--Use the “buddy system”—pair a “bad” fact with a good fact to offset the bad fact--Sentence structure example: Although/while [something bad is true], [this “good,” more important fact is also true].--Lead off with good points and good facts, follow with the bad --Show how the outcome your client wants leads to less desirable outcomes than yours

Liking –Get your listener/reader to like you (ethos)

►How does this apply to advocacy?--Be considerate: avoid ad hominem attacks--Make the judge’s life easier: be organized and clear, follow the rules, show respect for the authority of the court--Follow ethical rules:

http://lprb.mncourts.gov/rules/Pages/MRPC.aspx

In addition to heuristic techniques, remember that ultimately, you are telling a story and suggesting the appropriate ending

Good stories have a message that can be told in a few words—think fairy tales, Aesop’s fables:

Message of Hansel & Gretel, Goldilocks? Message of Super Bowl ads?

►How does this apply to advocacy?--Know your message (theme); be able to say it

in a few words (Six Word Story) (Bumper sticker)

--Organize according to your message—what do you need the reader to know right up front?

--Choose terminology consistent with your message. How do you refer to the parties? What words, especially verbs, do you use to describe what people did? Remember that many words as used in our society have positive or negative connotations. (“Did not” vs. “fail,” etc.)

--Detail what supports your message, put it at points of emphasis, summarize aspects that do not support your message

Facts

Goldilocks handoutGroup together—How would you tell this story as the prosecutor on a trespassing & destruction of property charge?How would you tell this story if defending her?

Why CREAC? Promotes primacy and recency—start with your

point and end with your point Rule of law and Case illustrations support logos

—make you sound authoritative and provide support for what you are saying

Case comparisons in arguments anchor your points in the familiar, support maintaining the status quo, support logos and your ethos as a knowledgeable professional with support for your argument

Policy and fairness arguments appeal to pathos Consistent organization techniques promote

perceptions of ethos and liking—makes judge’s job easier

Get to the point and state it directly

Delete unnecessary information—if in doubt, take it out.

Proofread and grammar check carefully

Ethos, Pathos, and Liking—make the judge’s life easier and look professional

Same as above, plus:

Make it even simpler; remember your listener is absorbing and assessing information delivered orally—can’t go back immediately and re-read—setting (kairos) makes a difference

Show conviction to promote ethos Remember that this is a conversation,

not a presentation

Overly dramatic or emotional presentation

Ignoring unhelpful facts or authority Lack of organization and/or clear

signposts to show organization Failing to concede a point that should

be conceded Saying a point is clear or obvious

when the opponent has a plausible point to make

Lack of preparation

Reading too much

Guessing instead of admitting that do not know the answer

Going so fast, or in such a disorganized way, that judges cannot ask questions

Not remembering to breathe!

Mary Beth Beazley, A Practical Guide to Appellate Advocacy (3d ed. 2010)

Robert B. Cialdini, Influence: Science and Practice (4th ed. 2001)

Ross Guberman, Point Made: How to Write Like the Nation's Top Advocates (2011)

Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 2008)