Saturday, July 12, 2014

A Fine Line Between Persuasion and Argument

One of the rookie mistakes every lawyer makes at some point is confusing persuasion for argument.  Merriam-Webster says that argument is “a statement or series of statements for or against something; a discussion in which people express different opinions about something; an angry disagreement.”  Persuasion is defined as “the act of causing people to do or believe something; the act or activity of persuading people.”  The latter implies some knowledge on the part of the persuader about what matters to or motivates the audience, whereas the former implies an aggressive imposition of ideas without regard for the audience.  Here are five concrete tips for avoiding mere argument.

  1. LISTEN.  By listening, an advocate learns what matters to its audience.  Before an oral argument, the judges often have not yet made up their minds.  They are primed to be persuaded, and if the advocate tunes into the questions appropriately, the advocate can learn valuable information about the judges’ concerns.  Similarly, when it comes to brief writing, advocates should listen to the arguments of their opponents so that they can adequately address the competing concerns in the case and explain why one side nevertheless prevails.
  2. ELIMINATE EXAGGERATORS.  Words like blatant, clearly, and obviously can be tempting to throw into a brief, but they offer little in the way of substance.  Seriously, if a resolution were so clear, would the case have even gotten this far?  Focus instead on the substance of the argument.  If the issue is in fact so clear, the judges will see it on their own.  It is the advocate’s job to make the issue seem clear cut, but slapping the word “clearly” on the argument is not likely to be taken at face value by a learned judge who is investing hours in the resolution of a case.  There needs to be meat there to back it up. 
  3. TAME EMOTIONS. It is hard not to get emotional about our cases.  First, we get to know the ins and outs of the cases, and we often develop intense relationships with our clients.  They are often in desperate situations and the lawyer might be their only hope for resolution of the conflict.  Second, when we invest time in developing an argument, writing a brief, and preparing for oral argument, it can feel like wasted time when we lose. Pushing anger, disappointment, frustration, sadness, and other emotions aside can be challenging, but it is essential.  An overly emotional response makes an attorney seem inappropriately biased, and the judge is less likely to trust that the attorney has considered all sides of the issues and is advancing a sound and thoroughly researched argument.  On a related note, avoid overt appeals to the judges’ emotions.  Judges pride themselves on making logical decisions separate from their personal emotions and feelings, so an overt appeal to the judge’s emotions can not only irritate the judge, it is likely to also insult the judge.
  4. AVOID AD HOMINEM ATTACKS.   Incorporating a personal attack against opposing counsel is a sure-fire way to make a judge think that no sound legal theory supports your position.  Let the law and facts speak for themselves by telling a compelling story about your client and showing the court how the law supports a resolution in favor of your client.
  5. DON’T TALK BACK.  At all costs, avoid the phrase, “But your Honor!”  Also think long and hard before filing a motion for rehearing or a motion for reconsideration.  Unless there is a legal basis for filing such a motion (like there is precedent the court did not have before it or new facts have come to light), they are usually a waste of time.  Handling these types of motions drains the court’s time and resources, and quite often these motions are unwarranted because there is no legal basis to justify the court changing its mind.  There is value in respecting the finality of judgment in a court.  If you disagree with the court’s ruling, appeal it to a higher court, but don’t argue about whether the decision was right by filing frivolous motions for rehearing and reconsideration.

http://lawprofessors.typepad.com/appellate_advocacy/2014/07/a-fine-line-between-persuasion-and-argument.html

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