Saturday, January 23, 2021
Many 1L legal writing professors begin the second semester using their favorite examples of persuasive writing. In addition to exercises on CRAC for crafting persuasive Argument sections, I use samples to show my students two key persuasive techniques: (1) catching a reader’s interest with a “hook” in the Introduction; and (2) using persuasive subheadings and fact presentations in the Statement of Facts. I have several great samples, including the well-known example from skater Tonya Harding’s International Olympic Committee filing. Harding’s lawyers introduced her request to be allowed to skate in the Olympics in three compelling words: “Tonya Harding skates.”
Of course, I am always looking for new samples. Many thanks to Professor Sarah Ricks, Distinguished Clinical Professor of Law at Rutgers Law School, for recently suggesting Legal Writing Institute List-Serv members read the beautifully-written Statement of Facts in an Opposition filed on behalf of Amazon Web Services in the Parler matter. In the Opposition to Parler’s Motion for a TRO, counsel for AWS, Davis Wright Tremaine LLP, uses plain language to engage the reader in the first line, and follows the Introduction with a truly persuasive Statement of Facts. See AWS Opp. to Parler's TRO Request. The Introduction and Statement of Facts from this January 12, 2021 filing are excellent examples of persuasive writing, albeit based on extremely troubling fact allegations.
Just as we instruct our students to do, the AWS Opposition begins its Introduction with short persuasive sentences catching the reader’s interest and summarizing AWS’s arguments in a straightforward matter:
This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (AWS) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens.
Id. at 2. The Introduction then presents AWS’s claims without hyperbole, and distills the heart of AWS’s argument to one sentence, arguing Parler attempts to compel “AWS to host content that plans, encourages, and incites violence.” Id.
The Opposition continues with a Statement of Facts deftly using subheadings to summarize the facts and its overall argument. As we know, judges are incredibly busy, and advocates should use persuasive subheadings in Statements of Facts as a way to help busy judges understand the key facts from reading the Table of Contents or from skimming the brief. See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”). The AWS Opposition Statement of Facts uses four brief subheadings to paint an overall picture of Parler as unwilling to limit disturbing content in violation of its contract with AWS:
- Parler Conducts the “Absolute Minimum” of Content Moderation.
- Parler Enters an Agreement with AWS for Web Hosting Services.
- Parler Repeatedly Violates the Agreement.
- AWS Exercises Its Right to Suspend Parler’s Account.
AWS Opp. to Parler's TRO Request at 2-5.
Finally, the Statement of Facts employs bullet points and quotes from the record to show Parler’s alleged abuses with precision. It takes only a few minutes to read the Statement of Facts, but AWS’s summary of the underlying matter stays with the reader. While some of the impact is no doubt based on the quoted Parler posts inciting sedition, rape, and murder, the calm, plain English structure and direct word choice also convey credibility and tell a compelling story. For example, under the subheading about content moderation, the Statement of Facts explains, “Parler prides itself on its hands-off approach to moderating user content,” followed by six supporting quotes from Parler executives. The quotes include sentences like, “’what we’ve decided to do is, let’s just not do any curation, no fact checking, let people do that on their own.’” Id. at 2-3. This method paints a clear picture of AWS’s fact contentions and persuades the reader AWS has accurately and carefully given us the whole story.
As appellate practitioners and writing teachers, we all benefit from reading each others’ work. I appreciate the suggestion from Prof. Ricks that we read the Statement of Facts in the AWS Opposition to Parler’s Request for a TRO, and I hope you also enjoy the brief’s persuasive writing.