Sunday, October 1, 2017
Having clerked at the Ninth Circuit and taught appellate and other legal writing for years now, I'm a big fan of the Appellate Advocacy Blog. I'm now delighted to join this outstanding group as a new contributor. In my posts, I plan to focus on my favorite thing: writing. And what better way to start than by talking about the beating heart of any brief. Something that is often neglected by appellate lawyers, and outright excised by trial ones. The introduction.
This is the lynchpin of everything you write as a lawyer. I would wager that whether you win or lose an appeal, or a motion, can more often than not be traced back to your introductions. Let me first convince you that you should be spending way more time on this section of your documents. Then I have some ideas about how to write good ones.
First off, introductions signal to a judge something profound: that the lawyer can help the judge write a better opinion. When you think about it, briefs are just cheat-sheets for a judge to use when writing their own documents. Supreme court and circuit opinions are chock full of phrases and concepts stolen from good lawyers. If you don’t convince the judge that your brief is worth stealing from, chances are they won’t give it a second glance. After all, they have an opinion to write. Lawyers often forget that there is no rule requiring judges to use briefs, or even finish reading them. You must convince the judge that you’re worth paying attention to.
Another way to think about introductions is to see your brief for what it is: a conversation with a judge. It’s a bit odd because your side of the conversation is prerecorded. But make no mistake, it’s a conversation. Your judge is responding to every word in your document. They’re asking questions. They’re arguing back. They’re criticizing. Hopefully, they’re agreeing.
If we take what we know about good conversations and apply it to writing, the importance of introductions becomes obvious. For starters, first impressions are everything when we meet a stranger. They shape how we perceive the speaker, how we gauge their credibility, their intelligence, their trustworthiness, and, ultimately, their competence.
For another, our ability to follow a conversation usually depends on how well the speaker frames the topic and organizes their thoughts at a high level. If the speaker launches into the details without giving some context, the listener is quickly lost.
And think about how quickly you tune out someone who drones on and on in a conversation without ever getting to the point. Same here. Many busy judges are skimming readers, which means that they might not read much past the introduction. Particularly if you bore or confuse them.
Cognitive science also has a lot to say about introductions. This science sheds light on how readers process the things they read. And it leaves no doubt that your introduction is crucial. Take the concept of priming. Readers are more likely to believe a point that they were well primed for earlier in a document (such as in the introduction). Or take the concept of chaining, which tells us that the way you organize and present your points influences whether your reader will believe you. The self-consistency and self-observation principles suggest that if you sell your judge in the introduction, they will subconsciously see everything that comes after in a better light. And the concept of fluency suggests that the readability of your introduction plays a role in whether your reader’s more skeptical modes of thinking are triggered—or whether, instead, your reader will be persuaded. Each of these cognitive science principles agree: good introductions are a key component of good legal writing.
And perhaps most important, a good introduction forces you to distill your understanding of complex issues into simple prose. After all, until you can explain the key points of your document in a short, clean introduction, you don’t understand them as deeply as you need to. Put in the work to write a phenomenal introduction and you might actually say something clear enough to stick in a judge’s mind.
Hopefully I’ve convinced you introductions are important. Now let’s talk about some concrete ways to put these principles into practice.
- Make your reader like you. Dozens of studies across disciplines agree that if your reader likes you, you are much more likely to persuade them. There are a few simple tactics here. Make yourself credible by conceding small issues. And when a legal or factual question is a tough one, say so. Your judge will already be struggling, so you might as well be sympathetic. Thinking through simple ways to help your reader is also great--such as using clear roadmaps and summaries. Another fantastic trick is to directly dialogue with your reader (Justice Kagan does this all the time). Use an occasional hypothetical or “you” language to create a personal connection. Finally, use some common-sense social skills. For example, no one likes people who are overly dramatic. No one likes a tattle-tale who complains about trifling things (like the other side making some clerical mistake). No one likes a complainer who turns small problems into big ones. Just remember: if you say something in a document that would be annoying in the outside world--writing it down makes you no less annoying.
- Show off. The introduction is also your chance to show your reader that you are an elite lawyer who has the chops to help the judge write a better opinion. To create that image, your writing style must be impeccable. Typos are not an option: if your introduction’s sloppy, your reader will assume the rest of your document is too. Beyond that, this is the time to show off your writing skill. Analyze every word, every sentence, every way that you can arrange the syntax--in other words, every possible writing choice you have. Science tells us that, aside from the content, legal readers are influenced by the quality of a lawyer’s writing style.
- Tantalize. No one wants to read boring writing. Making your writing easy to read is great, making it interesting is a whole other level. Use concrete examples, a couple saucy facts, pithy phrasing, and all the wordsmithing you can muster to make your introduction fun to read. This will increase your chances of getting a reader to forge on to the body.
- Think about the stories your reader knows. We humans love stories. Everything we see, hear, or read we turn into a story. And that counts for legal writing, too. You can use this psychological insight to improve your introductions. Think about your case and the document you are writing, and imagine how it will fit in with the stories your reader is likely to know. If your motion advocates for an exception to the battery rule, incorporate the exception into an existing narrative about the battery rules your reader knows: “Battery normally requires that a defendant actually touch the plaintiff, but if the defendant causes something else to contact the victim, that counts, too, because the plaintiff suffers the same harm and the defendant is just as blameworthy.” Explain the familiar story and then explain how your part fits into the narrative.
- Emphasize what you add to the story. Keeping this narrative point in mind, don’t dwell on the mundane stories your reader already knows. Blandly reciting the basic elements of battery in your intro isn’t helpful. Emphasize what is tough or interesting about your case and the law you advocate for. In other words, focus on what you add to the story. Frankly, this goes for the body of your legal documents as well; spending a lot of time on dry, undisputable black-letter law isn’t helpful. Keep your eye trained on the prize: persuading your reader of the nuances that matter in your case.
- Embrace the bad. Embrace the bad facts and bad law and put them into context. So many advocates run from the hard parts of their case, preferring to discuss (at length) the facts and law that support them. But this is the worst possible strategy. Your judge is going to sit down and write an opinion. Either tell them how to deal with the bad stuff so that they can write an opinion with you on the winning end--or ignore it and leave them to their imagination.
- Roadmap smartly. We often hear the advice that you should roadmap your arguments. And it’s good advice. But roadmapping isn’t just about giving your reader a laundry list of every possible thing you will discuss in your document; it’s also about giving them a sense of what matters. So if there are a couple issues that are sure throw-aways, tell your reader. Then tell them about the issues that matter and how those important issues fit with eachother: “Personal jurisdiction is not meaningfully disputed here, but subject matter jurisdiction is—and there is none. But even if there is subject matter jurisdiction, the contact element of the battery claim is not adequately pleaded so the complaint must be dismissed anyway.”
- Include the entire elevator pitch. Sometimes lawyers don't include their best stuff in their introductions, preferring to hold back some for the body. Maybe they want to tease the judge with some juicy details without putting all the pieces together yet. This is a horrible strategy. Judges, like most readers these days, are busy. Let's be honest, sometimes they can't do much more than skim. If you don't make your key points in your introduction, you may never get the chance. Even if your judge makes it through the details, when they return to your brief to write their opinion or for an oral argument, it's even more likely they won't make it past the intro. So make your introduction a full elevator pitch for your document: all the key law and key facts you need to win. And if you manage to actually persuade your judge on some points at the outset, cognitive science tells us that it will be much harder for them to change their mind later when they get into the weeds.
I am delighted to be selected as a contributor for the Appellate Advocacy Blog. If you have questions or comments (or just want to chat about writing), please email me at: email@example.com. You can also visit my website at www.writinglikealawyer.com