Saturday, June 4, 2022
A Few Commonsense Tips on How to Persuade Judges (and People)
It’s not that difficult to be persuasive. Below are a few tips to increase the persuasive value of your arguments.
1. Keep it simple, talk like a normal human being, and get out of the weeds.
If you want to persuade a court (or anyone), simplify your narrative. Think of it this way: if you had only one sentence to explain why a court should rule in your favor, what would you say? If you had only thirty seconds to explain why the Second Amendment protects an individual right to bear arms, what would you say? Simplifying your narrative, making complex concepts easily understandable, and staying “out of the weeds” is critical to effective advocacy.
After all, judges (and people generally) have short attention spans. They’re busy and often under considerable stress. So, get to the point immediately and do so in a manner that makes your argument clear and persuasive. Use simple words. Don’t state the obvious. Make sure your argument is structured logically and presented concisely. And get to the bottom line – quickly. Tell the court what you want and why it should rule in your favor. Consider the following example of an attorney arguing that there is no hate speech exception to the First Amendment:
Attorney: May it please the Court, the First Amendment is a bedrock, indeed the backbone, of our freedom in this country. As the historical record shows, the First Amendment was designed to create a marketplace of ideas in which the perspectives and political views of individuals from all segments of society must be respected and unregulated. As the federalist papers demonstrate, as John Marshall argued in 1788, and as countless law review articles that nobody reads confirm, the First Amendment is the essential safeguard of, and the impregnable sanctuary protecting, citizens’ right to disseminate commentary on matters apposite to political and social discourse. To be sure, the First Amendment is the catalyst for a democracy that can withstand the threats that tyranny poses and that authoritarianism endorses.
This is utterly ridiculous. If anything, this nonsense supports restricting First Amendment rights, if for no other reason than to spare the court from having to listen to this gibberish. A better approach would be as follows:
Attorney: The First Amendment protects unpopular, offensive, and distasteful speech to ensure that individuals can share diverse perspectives on matters of public concern. A hate speech exception would, by intent and in effect, allow the government to prohibit speech based on disagreement with its viewpoint and content. And the subjectivity inherent in this determination would present a threat to citizens of every political persuasion.
Again, this isn’t perfect, but you get the point. Keep it simple and direct.
2. Address the court’s questions and concerns.
Judges don’t care about what you want to argue. They care about whether you can address their concerns and respond in a way that makes them want to rule in your favor. For that reason, your answers to the court’s questions are critical to your chances of succeeding on the merits. If you evade a court’s questions, both your credibility and the persuasiveness of your argument will diminish substantially.
Imagine, for example, a relationship where a husband is upset because his wife is working long hours and not dedicating sufficient time to the relationship. Consider the following dialogue:
Husband: I feel like you don’t care about our relationship. You work at the law firm seven days a week and talk more about the Fourteenth Amendment than you do about our future. It’s like I don’t matter to you at all.
Wife: Look, I work eighty hours a week and without my salary, we wouldn’t be able to live in this house or send our kids to the best schools. I’m not expecting a medal, but a thank you now and then would be nice.
Yeah, these two are likely headed for a divorce – and for good reason. Why? Because the wife didn’t acknowledge and address the husband’s concern and therefore made no attempt to resolve the conflict. If you do this as an advocate, your argument will likely fail. Consider, for example, the following dialogue between an attorney and a justice on the United States Supreme Court:
Justice on Supreme Court: Counselor, Roe v. Wade is not based on any reasonable interpretation of the Constitution’s text and is based on a theory – substantive due process – that makes no sense. Where in the Constitution can this Court find a right to abort a pregnancy?
Attorney: Your Honor, Roe v. Wade has been the law of the land for fifty years, and overturning Roe now would seem like a brazenly political decision.
That nonsensical response is the equivalent of saying, I don’t care about your question or your concerns. Such an approach will diminish your credibility, reduce the persuasiveness of your argument, and alienate the justices. A better response would be as follows:
The right to abortion is firmly rooted in the liberty protected under the Fourteenth Amendment, which this Court has affirmed numerous times, such as in Planned Parenthood v. Casey, and this right reflects the underlying purpose of the text, which is to ensure the liberty, equality, and bodily autonomy of all persons.
This response, although not perfect, responds directly to the justice’s concerns.
3. Acknowledge weaknesses in your argument.
Nobody is perfect, as the Johnny Depp-Amber Heard trial so clearly showed. And no argument is perfect. You will almost always have to address unfavorable facts or law. That’s not necessarily a bad thing, though, because it gives you an opportunity to explain why unfavorable facts or law do not affect the outcome you seek.
The worst thing that you can do, however, is to evade, minimize, or offer unpersuasive explanations for unfavorable facts or law. For example, in the Johnny Depp trial, Depp’s attorney, Camille Vasquez, highlighted that while Amber heard had pledged to donate the money from her divorce settlement with Depp to charity, she hadn’t actually donated the money. Heard should have simply acknowledged this point. Instead, she claimed that, in her view, the words pledged and donated are synonymous.
That was bad.
And very damaging to her credibility.
4. Be passionate and emotional (when appropriate).
It’s important, as an advocate, to show that you care. That you are emotionally invested in your client and your case. When you show genuine passion and emotion, it conveys that you believe strongly in your argument and in the remedy that you seek. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. After all, imagine if you proposed marriage to your partner in a monotone voice and with no emotion whatsoever? The answer would likely be no.
5. Be likable and relatable.
This doesn’t require much explanation. People hate jerks (and there are many jerks lurking in the legal profession). So, don’t be a jerk. Don’t be arrogant. Don’t gossip. Don’t judge. Be a nice person. Respect people with whom you disagree. Be honest. Be compassionate. Courts and people are more likely to empathize with others that they like.
As an actual judge, let me respond to a couple of the points here.
1. It's not so much that judges have the attention spans of mosquitoes (though, of course, some do), as that (a) they have a lot of work to do; (b) they don't know your case as well as you do (or maybe even at all); (c) they are typically generalists, not specialists; and (d) information delivered simply and straightforwardly is more easily digested. The goal should always be to make it easy for the judge to rule for you. Convoluted, indirect, verbose arguments are hard to decipher and so make it harder, not easier, for the judge to rule.
2. Judges don't need lawyers to be likeable or relatable. I already have friends; I'm not looking for more. But judges do need lawyers to be pleasant. And reasonable. Reasonable is nice.
3. Please don't be passionate, and please don't get emotional. I'm not a jury, so passion doesn't sway me in the least. What I want is help with whatever arcane legal issue I'm being asked to decide. Lots of lawyers with rotten arguments believe fervently that they're right. Their fervency doesn't add to their arguments' strength.
And there's another dimension to the passion/emotion question. I find passion and emotion distracting. Why? Because every time a lawyer gets exercised, I begin worrying about maintaining order, ensuring civility, keeping a lid on things. No longer am I a judge. Now I'm a combination nursery school teacher/World Wrestling Federation referee. Deciding the arcane legal issue has become that much harder. Good lawyers, I've found, are always calm. The best ones are downright serene.
Posted by: Ben Goldgar | Jun 6, 2022 10:38:47 AM