Tuesday, July 16, 2019
Many arguments consist of two main parts—an articulation of the law and an application of that law to the client’s facts. I thought the second part, arguing how the law applies to the facts, is where I persuaded the court to rule in my favor. However, I’ve learned that how I describe the law, before I ever apply it to the case, is equally important for effective advocacy.
When explaining the law in a brief, attorneys draw from authority. Sources of law are often written objectively. In a brief, simply paraphrasing or quoting court opinions or statues in their objective form neglects an opportunity to tell the client’s story using the law.
In their book Just Briefs, Laurel Oates, Anne Enquist, and Connie Krontz describe several techniques for telling the client’s story with the law. These techniques focus on presenting the law from the client’s perspective.
It can be challenging to draft the law from the client’s point of view while pulling from objectively written sources. I recommend writing a clear description of the law and then editing it for persuasion.
Let’s look at an example of how to edit a statement of the law to punch up its persuasiveness.
Objective Statement of the Law (First Draft)
[I’ve omitted citations for ease of reading, though citations can also be used to persuade the court.]
Covenants not to compete within employment contracts are matters of law for a court to decide. Typically, covenants not to compete are disfavored under the law. The party seeking to enforce the covenant bears the burden of proving its reasonableness. Courts will find a covenant not to compete is reasonable, and therefore enforceable, when the covenant is “narrowly tailored” to protect the employer’s legitimate interest, the covenant does not impose an “undue hardship on the employee,” and the covenant is not “injurious to the public interest.”
Persuasive Statement of the Law (Revised Version of First Draft)
[Assume we represent an employee challenging the enforceability of her covenant not to compete with her employer. By editing the objective statement above, we present the law from the client’s perspective, which is that the covenant not to compete is unreasonable and unenforceable.]
The New Hampshire Supreme Court has repeatedly held that covenants not to compete are disfavored under the law. The unreasonableness of a covenant not to compete is a matter of law for the court to decide using a three-prong test. First, a covenant is unreasonable if it is not “narrowly tailored” to protect the employer’s legitimate interest. Second, the covenant is unreasonable if it imposes an “undue hardship on the employee.” Third, the covenant is unreasonable if it is “injurious to the public interest.” A covenant not to compete is unreasonable, and therefore unenforceable, unless the employer, as the party bearing the burden of proof, can prove all three prongs.
Checklist of Edits Transforming Objective Into Persuasive
- We reworked a sentence describing law that is favorable to our client to emphasize that this point has been routinely espoused by the highest court in the jurisdiction. While the citation would show this statement came from the New Hampshire Supreme Court, our text stresses that this portion of the law is firmly established by precedent.
- We changed the order of sentences to take advantage of the beginning of the paragraph as a position of emphasis. We start the rule strong.
- We reworded portions of the rule to reflect the outcome our client wants. We changed “enforceable” to “unenforceable” and “reasonable” to “unreasonable.”
- We made the three-prong enforceability test, which the opposing side (employer) must prove, appear more difficult to meet by breaking it into three separate sentences.
- In order to emphasize the conjunctive nature of the rule, we repeat the statement that all three prongs of the test must be met.
- We end strongly with a portion of the rule that is favorable to our client, which is that the employer bears the burden of proof. The end is also a position of emphasis.
Amanda Sholtis teaches legal analysis and writing at Widener University Commonwealth Law School in Harrisburg, Pennsylvania. You may contact her at firstname.lastname@example.org.