Saturday, April 27, 2019
“Know the rules well, so you can break them effectively.”
Pick up the average brief and skim through it. Good chance that one section will stand out as extra flabby. The lawyer will have dropped loads of complicated, abstract ideas on you with little guidance--leaving you to parse apart what they might mean and how they might work. What's crazy is that this section will be the cornerstone of the brief. It will be what anchors the analysis--and ultimately, who wins and who loses.
I'm talking about the rule section: The section that many judges say is the single biggest shortcoming for most lawyers. In a recent survey about the state of legal writing, judges complained about missing rules, missing cases, and just plain confusing discussions about the rules.
The facts are key. We know that because storytelling is so powerful. But rules are powerful for legal readers, too. Because when you explain rules, you are telling the reader a story about what facts matter. This framework gives them a feeling of control. A feeling that they know what to do with the wave of facts coming.
A few cognitive science principles are at work with rules. One is the need for fluency in a world that is very un-fluent. Rules are complicated and talking about rules is tough. So if you manage to distill rules into simple, easy-to-digest writing—you are already ahead of the pack.
Another principle is that the more uncertainty inherent in a rule, the more uncomfortable your reader will be with it. We humans don’t like uncertainty. Our minds crave someone to connect all the dots for us. So focus on showing your reader how to interpret the rule in your case so that the facts smoothly line up with the standards. One study showed that the more similar your rule explanation is to the ultimate conclusion you want the reader to draw—the more likely the reader is to agree with you on the whole.
A final principle to think about is skepticism. Once you are arguing about your facts, your reader can’t help but question your motives. But when you're discussing rules, your reader can see a different persona. Done right, your reader can see this section as a primer on how the law works. So steer clear of extra-strong advocacy-sounding language and maintain credibility. If you do that, you can thread a needle that is powerfully persuasive.
To get you started, I have a few moves for you to try out.
Use your own, simple, voice
Unless there’s a reason to quote (e.g., statutory language or when the original writer matters), explain rules using your own, simple, words. The same science applies to explaining rules that applies to all your writing: your sentence structure, word choice, and style will change how swiftly your readers understand and accept your points.
Do you really need to block quote a procedural rule when the wording doesn’t matter? Instead, explain the concepts in your own clear writing:
Federal Rule of Civil Procedure 19 works in two steps. First, the court decides if there are missing parties who are necessary to resolving this case. If so, the court tries to join them; if not, the court must decide whether they are so crucial that they are indispensable and their absence warrants outright dismissal of the action. At least for now.
Here’s another example that avoids bland quotes about the background criminal process:
Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect stands accused but is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase.
Frame rules to win
Many legal writers describe the important rules without giving any thought about how to frame them persuasively. Instead of blandly copying and pasting the rule’s language, try to rework the rules so that they are always in a form that pushes your reader towards the ultimate goal.
One way to do this is to push the least favorable parts into a dependent clause-- deemphasizing them.
So for the plaintiff:
Even though failing to allege enough facts undermines a claim, if all elements are alleged the claim survives dismissal.
Notice that the independent clause is the plaintiff's favorite part of the rule.
For the defendant, you can do the same thing:
If the plaintiff fails to allege a single element of her claim, her claim must fail.
You can also use tools that emphasize and deemphasize in other ways. Like putting the favorable rules in places of emphasis (headings, introductions, and the starts and ends of paragraphs and sections). Or use other sentence-level tools that emphasize, like italics, em-dashes, or colons:
If the plaintiff fails to allege a single element of her claim--her claim must fail.
Another tool here is to reframe the rule in absolutes--with an eye towards emphasizing the best parts of the rule for your side:
So for the plaintiff:
If a plaintiff alleges specific facts to support her claim, the complaint is sufficient as a matter of law.
For the defendant:
If a plaintiff fails to allege facts to support a single element of her claim, that claim fails as a matter of law.
Telling the rules' story
One of the most powerful stories is a type you might not think about: Rule stories.
Really, every rule is a story. Whether it be a statute, a common law principle, or a case's reasoning. Some situation or circumstance gave birth to the rule. The rule grew over time—changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.
There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief—telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.
Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).
Look how different it is when the rule is explained in story-form by Justice Gorsuch:
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation will ring hollow.
Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shoddy case that twisted the law in a way it shouldn’t have. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect.
You become more persuasive interpreting rules as a storyteller than a scrivener:
Florida’s felony battery statute was intended to fill a gap between simple battery, which under Florida Statute § 784.03 is committed when the offender subjects his victim to any type of unwanted physical contact, and aggravated battery, which under Florida Statute § 784.045 is committed when the offender commits a battery and thereby “intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement” to his victim. - Judge Carnes
Lawyers constantly drop citations on readers without signposting how that citation supports their sentence. Talk about a credibility killer. If your reader needs to go look up a case to figure out how it supports the sentences you’re writing—the game may be lost.
If your reader needs to make any inference to agree with your underlying sentence, consider making that inference crystal clear or cut the citation altogether and rely on your own credibility. Either you make it obvious what the citation is doing for you, or cut the distraction.
You may have some generic rule principles that require a cite and nothing more. “Plaintiff has the burden here. [cite]” could be an example.
But when you get to the nuances—and especially when it’s an important part of the rule that you need to win your case—avoid relying on empty citations. Do the inferential reasoning for your reader and put it on display.
One option is to explain your inference directly:
Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).
Your citation's purpose is clear because you’re telling your reader what inferences you’re relying on.
You could also interpret the rule in your own words, then explain the supporting facts or quotes with citations:
Contact with the plaintiff’s skin is not needed. [no cite—you are saying “judge this is the right interpretationl now I’ll show you why.] In Park, the court address a defendant who ripped a plate from the plaintiff’s hand. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).
Now you are telling the judge that the first sentence is your inference, the second is a direct paraphrase of the case’s fact section. All good. The point is: When your reader won’t instantly know what a case says (at least paraphrased) or why you cited it, make it obvious.
Another option is a parenthetical:
The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012) (considering contract dispute and explaining courts cannot stop at the plain language when interpreting).
Another is a quote:
The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement.” Park v. Hoffman, 654 F.2d 578 (2012).
Don’t do a fact-dump in your rules
When discussing rules and authority, many legal writers do the ole’ dump and conclude. They list a bunch of facts from a prior case, then drop a single conclusion at the end about what that means for the rule.
In Jasperson, a fuel tanker was carrying supplies to another carrier and hit a reef, damaging the tanker. The insurance companies for the tanker and the shipping company both denied coverage because another carrier was arguably in coverage. The plaintiff made a demand for payment from both insurers and each refused. The court held that this was enough to state a bad faith claim.
Instead, only list facts if you need to—and with a purpose. Some authority doesn’t require a fact recitation; sometimes the language from the authority is all you need. And if the authority’s facts help you prove your rule, try explaining how the prior court used the facts as you go, not just a dump and conclusion at the end.
Here’s how the above example looks rewritten to avoid the fact dump and conclusion:
In Jasperson, the court held that two insurers could not both refuse coverage merely because the other could also be liable. There, a fuel tanker hit a reef and the owner submitted a claim to his two insurers, one who covered the tanker and one that covered his company. The court held that it was wrong for both insurers to rely on this potentially overlapping coverage as a reason to deny payments.
Here are some other examples. Instead of saying:
In Yearsley, the Supreme Court considered whether a private contractor that was building rivers dikes…
In Ackerson, the Army Corps of Engineers contracted with the defendant contractors to…
Try explaining how the court used the facts as you go:
In Yearsley, the Supreme Court explained that public contractors are immune from suit if they are performing a public function. A private contractor was…
In Ackerson, the court changed the rule for when damages are awarded, granting trial courts additional discretion….
Use citations to your advantage
Consider moving citations to the end of sentences. Or describe them first with just a shorthand name. Otherwise, they make your writing clunky.
And consider putting the court, year, and other quality information directly in the text, if it’s helpful. Don’t expect your reader will read the cite (because many don’t).
So instead of:
In Gonzala Orzhina v. Paleot Systems and More Inc., 321 U.S. 141, 155 (2012), the court held …
Try cutting the burdensome citation information:
One court held that … . Gonzala Orzhina v. Paleot Systems and More Inc., 321 U.S. 141, 155 (2012).
Or lead with a short form at least:
In Gonzala v. Paleot, the court …
Dish up the authority’s quality if it helps persuade:
Just last year, the U.S. Supreme Court held …
Some other things to think about when explaining your rules:
1. When a rule is unsettled or particularly controversial, provide extra, extra detail. Tell the whole rule story and analyze as many cases and sources of support as you can. This is where you have the biggest risk of losing your reader on the merits so that's where you want to allocate your fire and really sell the sizzle.
2. Identify your opposing party’s best case—and destroy it with particular gusto. Use all the moves you’ve got on this point.
3. Generally, make your best case first—then tear down the opposing party’s rule interpretations. In the best case scenario, you wouldn’t even need to address the other side’s rules too much head on, because your rule stories have already dealt with them.
4. If possible, and you truly need to bring the other side’s arguments out into the light, try reframing (accurately and fairly) the other side’s most critical interpretations. For example: “Thus, as read by the [other side], Williamson County sends these plaintiffs to state court, while state law directs them back to federal.”
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.