Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, March 25, 2018

Make Sure You're the Lawyer That the Judge Can Trust

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 “If you tell the truth, you don’t have to remember anything.”
 
-Mark Twain 
 
When I talk about legal writing, I like to stick to specifics. Like how to write punchy first sentences. Or tricks for catching typos while you're editing. Or how to spot words that you can cut to better focus on the content.
 
Concrete tips like those are easy to try and easy to train. But there are some bigger writing ideas that are also worth talking about. And one of the most helpful, in my mind, is credibility. Because with the right sort of writing credibility, you can persuade even the most skeptical readers. 
 
Let me say at the outset: Building credibility through your writing is harder than building credibility in person. In person, there are some easy tricks--posture, the tone of your voice, eye contact, a smile--that you can polish up in short order.
 
But when you write, there's a lot more to it. Your reader can't see you; they can't hear you. Everything about who you are must spring from the words on the page. Stated differently, you must build a written version of your self from the feet up. And your written-self better be pretty freaking awesome. 
 
As I write this, how do you see me? Have I convinced you that I'm someone you can trust? Perhaps a little. But do you trust me enough to put your reputation on the line? Say, to take my words, sign your name to them, and send them off to be published to the world? 
 
Because that is what you're asking every time you write a document for a judge. If you hope to actually change a judge's mind and not just go through the motions (no pun intended!) you must convince that judge to trust your written-self like a close friend. Enough to risk reversal or embarrassment if they listen to your advice. 
 
Sculpting your written-self is as much of an art as sculpting clay. Every word, every sentence, and every paragraph will influence the version of you that steps off the page. What details you choose to include; which you choose to excise. Your tone. And certainly every typo. It will all be part of your written-self that gradually takes shape before your reader. 
 
All these possibilities are daunting. But they're also empowering. Because it means that, while you can't completely change your in-person credibility (some of us just have that face); you can absolutely change your written-self credibility in exciting ways. Indeed, to be your best written self, I suggest you actually create multiple personalities--three to be exact. If you manage to embody each, your reader just might take your word for it (whatever that "it" is). 
 
Consider adopting these three new selves: (1) the expert, (2) the confidant, and (3) the smartest person in the room. This is not too far afield from Aristotle's three forms of persuasion through emotion (showing your listener that you have good sense, good character, and good will). But with some modifications for us lawyers.
 
Each of these personas will reassure your reader, in various ways, that you are worth listening to. And ultimately, worth trusting. 
 
The expert. 
 
Your first persona is the expert. She knows how her client works, how the market works. She has been handling this particular species of case for years. She understands the practical ins and outs. She knows how these cases go on appeal. This persona will reassure judges that you've thought about the bigger picture and the repercussions--that your approach will make sense to the real world. 
 
It's about making the judge see you as an experienced professional who can be trusted to think beyond the cases. A person who truly represents her client's perspective
 
Look at how federal Judge Jennifer Dorsey uses her many years of former litigation experience to give off this air of expertise in a real estate case. She lays the groundwork for her expertise in this area, discussing the practical big-picture of Las Vegas's housing market and what lenders and investors have been doing in the real world. Also note the use of accessible industry terms, like "deed of trust," delivered without overwhelming jargon. And a tell-tale expert move, Judge Dorsey's familiar and vivid language suggests she is intimately familiar with these issues (the market "crash[ed]," referring to the "winners" and "losers"):
 
In the years following Las Vegas’s real estate crash, lenders and investors were at loggerheads over the legal effect of a homeowners association’s nonjudicial foreclosure of a superpriority lien on a lender’s first trust deed. The Nevada Supreme Court settled the debate last September in SFR Investments Pool 1, LLC v. U.S. Bank, holding that “NRS 116.3116(2) gives an HOA a true superpriority lien, proper foreclosure of which will extinguish a first deed of trust.”
 
The SFR decision made winners out of the investors who purchased foreclosure properties in HOA sales and losers of the lenders who gambled on the opposite result, elected not to satisfy the HOA liens to prevent foreclosure, and thus saw their interests wiped out by sales that often yielded a small fraction of the loan balance. Freedom Mortgage Corporation is one of these lenders.

How to build this persona:

  1. Include background facts in your brief that explain how the law intersects with the real world--facts about your client, the opposing party, and the bigger environment they operate in. You are subtly showing the judge that you've been around the block. 
  2. Including some industry-speak can be helpful, but you must quickly explain or define any of this language. And if it's not intuitive or easy to understand, skip it.  
  3. If possible, refer to your judge's past cases or at least some local cases. This shows that you are a frequent flyer to the court (even if you are really a newbie!). 
  4. Lock down the local rules and cross-cite to them for any procedural issues--this will also show the judge you know how things are done in that court.  
  5. Show the judge your experience with these types of cases by discussing case law with a familiarity that makes it seem like you've been here before (even if you haven't). Style moves can help here, like familiar words and easy-to-read, intimate summaries of important authority in that legal field. 
  6. Be able to talk about trends in the law and what well-known or reputable authorities have done with an issue. 
The confidant. 
 
The next persona is about you as a person. It's about being honest and dependable. The type of person others turn to for important projects. The type of person who won't get caught up in their emotions or ego. Steady. A straight shooter. 
 
Not only must you technically tell the truth--you must be honest about the spirit of the truth, too. The judge must never feel misled by you. When you say a case says something or the documents don't: the judge knows that's so. If you tell the judge your kid is sick and you need a continuance--the judge won't find out later that you don't have kids and were actually cosplaying at Comic Con. Hyperbole and stretching is not going to win cases for you. Stick to the facts and details and more subtle style moves. 
 
Viacom used choice details instead of cheap characterizations to keep their credibility in the YouTube v. Viacom case. For example, Viacom wanted the YouTube founders to look like people out for a quick buck who didn't care about the consequences. Instead of saying that themselves and sounding argumentative, they quoted the founders themselves, who had stated in documents that their "dirty little secret . . . is that we actually just want to sell out quickly . . . concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics." This is much better than trying to characterize the facts for yourself. 
 
In one Pennsylvania case, the costs of laying it on too thick became all too clear to one attorney. Plaintiff's counsel exaggerated some of the key facts in his brief, and the court called him out on it: "counsel for claimant has seriously undermined his professional credibility." In an Idaho Supreme Court opinion, a lawyer was called out for leaving out out of his brief some bad facts for his client; the court noted that this "damage[d] both his credibility and his client's position."
 
On the other hand, when attorneys are straight, judges notice. Like in a Massachusetts case, where one of the lawyers filed a notice letting the court know of new, binding authority that was unhelpful to his client's case. The court noted "such advocacy comports with the highest level of professionalism and deserves to be praised as exemplary ethical conduct." You can bet that judge will be trust anything that lawyer says in the future. Or take a Florida attorney who conceded a number of facts in an appellate brief--and reaped the rewards. The Florida appellate court stated in its final opinion that the attorney: "concentrate[d] on the important matters for our consideration and d[id] not have us counting dancing angels on small promontories. We recognize in his advocacy a lawyer on who we can usually rely to get it right and do it ethically." 
 
Finally, this persona is not just about your honesty, but your character as a whole. You work hard. You look out for the judge's well being. You pay attention to the little things to make the judge's life easier--like appending copies of hard-to-find cases or footnoting some extra explanation for the judge to navigate your exhibits. Others jokingly say they are "officers of the court." But you mean it. You must represent your client, but at the end of the day, the judge is also a client that you can't neglect. 
 
How to build this persona:
 
  • Concede when you have losing arguments; admit when issues are tough. 
  • Even if you can't concede anything important, at least point out where you agree with the other side--this shows you are not fighting just to fight. 
  • Carelessness will kill your credibility. Pay attention to the little things so that the judge knows that if she steals from your brief, she knows you didn't miss something important. 
  • Make your brief user friendly. Always think of ways to help the judge find information and track down references or cross-references. 
  • Cut most adverbs and adjectives that tell your reader what to think; instead, let choice details speak for themselves so that the judge views you as the honest messenger. 
  • Shed the argumentative, judgmental tone. Science shows that this style, in fact, makes your reader less receptive to your arguments and increases their skepticism about what you say. You become a salesmen instead of a teacher or intermediary. So, no using "clearly, obviously, very clear" and the like. 
  • Your facts should be told in a story-form that persuades through your choice of details and subtle moves, like sentences that deemphasize bad facts. If you are calling another party's actions "atrocious" or contend they are "flagrantly violating the rules," you are not building the confidant persona. You just sound like every other hawker. 
  • Generalities and conclusory statements insult your reader's intelligence. If you are genuinely summarizing or introducing, fine. But blanket generalizations that you can't back up just highlights your weaknesses. 
  • Never ignore the bad facts--in the law and story. Nothing makes you look shadier. And when the judge or clerk notices what's missing, you just did the other side a favor and made the bad stuff more obvious.  
The smartest person in the room. 
 
Finally, you have to be the smart one.  You have to be so smart, in fact, that the judge thinks of you like a teacher, walking her through the complexity like it's a breeze. You should have such a clever way of looking at the cases and issues that the judge wants to take your brief--turn it into an opinion--and look good by osmosis. And let's just be honest: we trust smart people. We think they must know what they're talking about. We resist disagreeing with them--after all, we see things just like they do (because we're smart, too!). 
 
Pulling this persona off is about your raw writing chops, the time you spend understanding the law, and how deft you are at explaining complex concepts. Look at how one lawyer shows off his smarts with excellent writing skills in the following brief snippet. The writing is as clear and engaging as anything you'll read from a good journalist. He uses simple sentences, compelling structure that subtly emphasizes key points for the reader, vivid verbs, and excellent quoted dialogue. And it's all tackling some complex ideas: 
 
A “surcharge” and a “discount” are just two ways of framing the same price information—like calling a glass half full instead of half empty. But consumers react very differently to the two labels, perceiving a surcharge as a penalty[]. Precisely because the surcharge label is most effective at communicating the true cost[], the [] industry has long insisted that it be suppressed. As one industry lobbyist put it, a surcharge “makes a negative statement about the card to the consumer” and “talk[s] against the credit industry.” In justifying its law, the state openly relied on the effectiveness of the two labels, “even if only psychologically,” to encourage or discourage “desired behavior.” 
 
New York’s no-surcharge law in effect says to merchants: If you use dual pricing, you may tell your customers only that they are paying less to pay without credit (a “discount”), not that they are paying more to pay with credit (a “surcharge”)—even though they are paying more.
How to build this persona:
 
  • Spend enough time editing your prose that your writing has a luster. It must be crisp, fluid, and engaging.
  • Use fresh nouns, vivid verbs, and sentences that subtly emphasize and guide through their structure.
  • Transitions must connect every sentence, paragraph, and section until the entire document reaches a state of pure fluidity. 
  • Your document must be excellently organized so that the reader is never lost: headings are readable and make sense, introductions give the reader enough context to understand your points, and nothing comes as a surprise. 
  • Spend enough time wrestling with the law and authority until you are able to explain how it works to a lay person--like a journalist must. The simpler you can explain tough concepts, the smarter and more credible you look. 
  • To really get there, incorporate advanced writing moves (which I'll continue to cover in future posts) like sentence structures that break the rules (punchy fragments, appositive clusters, rhetorical flourishes, and an endless array of others); figurative language, or powerful examples or comparisons. 
Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 
 
 
 

http://lawprofessors.typepad.com/appellate_advocacy/2018/03/the-legal-long-game-building-credibility-with-your-readers.html

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