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What a judge wants

By Joshua Williams Ben Armistead | Jul. 9, 2018


general / Appellate Practice

What a judge wants

Writing is like a brick: You can use it to build a house or sink a dead body. You can win a case, or you can cost your client and sully your reputation. Indeed, bad writing is painful. It's verbose, irritating, and useless. Even worse, it makes an otherwise favorable reader detest you. This is not a wise strategy when your reader is the judge deciding your client's fate. Your writing should focus on one person and one person only: the judge.

Likewise, you should tailor your oral arguments for the judge's benefit. Cut to the chase. Never waste the court's time. Be deferential. Present your arguments in a natural, but respectful tone, and above all, if you get a question from the court, answer it. So to improve your legal writing and advocacy skills, consider this:

Perfect Your Legal Writing

Some lawyers scoff at the thought of improving their legal writing. "I've been doing it like this for years and it has been fine." "What's the point?" "I don't need this," "I don't have time," etc. Nonsense.

As Associate Justice Elena Kagan noted in a 2015 Q&A session at Boston College Law School: "To be a world class lawyer you have to do a lot of writing and you have to be good at it." Getting better at legal writing benefits clients, causes and your career. It's a lawyer's bread and butter.

You do not have to sacrifice efficiency to be a good writer. Law is a fast-paced practice, but resist the impulse to pass off shoddy or lukewarm writing merely for the sake of getting a job done. After all, lawyers are professional writers. Instead, hone your skills. Make the judge's life easier. And win your case. Here are three tips for doing just that:

1. Be concise -- cut to the chase.

Superfluous words waste the court's time. And wasting the court's time is a decidedly dangerous litigation tactic. Focus on your strong arguments and quickly and deftly deal with counter-arguments. Choose your words carefully.

In writing, take advantage of point headings and use the table of contents to lay out your argument so that a glance will tell the reader everything they need to know about your case. Similarly, use topic sentences to introduce a complex idea and smooth your way into the next paragraph.

Write simply. That is, use Plain English. This involves two things: First, cut unnecessary words to save space. Cut out legalese. Do not allow it to engulf your writing -- ax it. As writing guru Bryan Garner notes in "The Redbook: A Manual of Legal Style": "Just because you know what malum prohibitum means or what a habendum clause does is no reason to use such language at the dinner table. A lawyer should keep in mind that the purpose of communication is to communicate, and this can't be done if the reader or listener doesn't understand the words used." So henceforth ... purge your writing of "henceforth."

Second, choose simple words over fancy or complex ones. For example, Garner says to replace "approximately" with "about"; "frequently" with "often"; "procure" with "get," etc. Generally, shorter is better. The bottom line is that each word should serve to get your point across. Do not let unnecessary verbiage or poorly chosen words mask an otherwise winning argument or distract a judge's attention from your point.

One way to tell whether you are succeeding at these two points is to read your work aloud. For example, in high-stakes work, print out a copy of your writing and read it out loud to yourself or a colleague. Does it sound natural? Does it flow? Did anything sound clunky or stick out? Was your point clear? Reading it aloud helps ensure that your argument is clear and up front. So keep it short, and cut to the chase.

2. Use a syllogism.

Judges are persuaded by logic. In "Making Your Case: The Art of Persuading Judges," Garner and co-author Justice Antonin Scalia say that because "[t]he most rigorous form of logic, and hence the most persuasive, is the syllogism," frame arguments in this form. A syllogism has three parts: (1) the major premise, (2) the minor premise, and (3) the conclusion. A common syllogism is: (1) All men are mortal, (2) Socrates is a man, (3) therefore, Socrates is mortal. They can be positive or negative -- a positive syllogism looks like:

Major premise: All S is P.

Minor premise: This case is S.

Conclusion: This case is P.

And a negative syllogism:

Major premise: Only S is P.

Minor premise: This case is not S.

Conclusion: This case is not P.

Garner and Scalia write that, "[i]f the major premise (the controlling rule) and the minor premise (the facts invoking that rule) are true (you must establish that they're true), the conclusion follows inevitably."

Thinking about your argument in the form of a syllogism cuts your argument down to its core. As a result, your argument will be cleaner and clearer. Here are more examples given in "Making Your Case":

Major premise: Our case establishes that a prisoner has a claim for harm caused by the state's deliberate indifference to serious medical needs.

Minor premise: Guards at the Andersen Unit ignored the plaintiff's complaints of acute abdominal pain for 48 hours, whereupon his appendix burst.

Conclusion: The plaintiff prisoner has a claim.

Another:

Major premise: Under the Indian commerce clause of the U.S. Constitution, states cannot tax Indian tribes for activities on reservations without the express authorization of Congress.

Minor premise: Without congressional authorization, South Dakota has imposed its motor-fuel tax on tribes that sell fuel on reservations.

Conclusion: South Dakota's tax is unconstitutional.

Every argument can be boiled down to a syllogism. Indeed, every argument you make should be in the form of a syllogism. If the conclusion does not follow from the minor premise, rethink your argument. Again, what persuades a judge is logic. So use it, and win.

3. Write for the Judge.

Finally, keep your reader in mind. Remember your audience (a judge) and write for it. Most important, remember that you want the judge to rule in your favor. If something is painful to write, it is probably painful to read. Here is one way to look at it: Assume that as a writer, you have a contract with the reader, and "[t]he core of this contract between the writer and reader is that the reader should never have to reread a passage to understand it properly." Andrew J. Guilford, California Bar Journal, "Legal writing: A contract between the reader and writer" (November 2010). Judges are busy people; so rereading, of course, is best avoided.

Further, just because the judge is also a lawyer does not mean they enjoy listening to other stuffy lawyers. In fact, it is likely the opposite -- they are more unforgiving than most because of the sometimes lower caliber lawyers' work they are forced to read. Judge Guilford says that,"[a]nother helpful game is to imagine that, as part of the writer-reader contract, the reader gets to charge the writer for each word read." No doubt, this game would cause lawyers everywhere to purge their writing.

You want to leave the judge with a good impression -- and as a lawyer, your writing is your reputation. So be kind to your reader.

Improve Your Oral Advocacy

When it comes down to it, a lawyer's job -- as an oral advocate -- is to persuade. Whether it is in front of a federal court or in front of colleagues, your ability to convince the audience will make or break you as a lawyer. So the importance of polishing (or re-learning) this skill is nonpareil. Nearly everything discussed above applies to your oral arguments: Cut to the chase, use a syllogism, focus on the judge. So combine that with these tips:

1. Be natural, but also respectful, when talking to the judge.

Eschew unnecessary formality. Instead of speaking at a judge, speak with a judge. Meaning: Try to strike a conversational tone of an intellectual equal. Purge stuffiness -- natural and relaxed is best. You are not trying to impress the judge with how much you know. But no matter your tone, never speak over a judge; as soon as they start speaking, you should stop. Even if you are being interrupted, stop. In a similar vein, maintain eye contact. Looking away nervously does not help your case and can make it appear as though you do not trust your own argument.

Just like with writing, you want to eliminate anything that distracts from your argument. So take stock of your own personal tics and tendencies to the best of your ability and eliminate anything that takes away from your argument. For example, if you speak quickly, practice speaking slowly and clearly; if you speak slowly but fill it with "ums" or other verbal tics, then focus on cutting them down. Because we are often unaware of our own mistakes, seek out a colleague's help, or record yourself and take notes.

2. Be professional -- especially when dealing with opposing counsel.

Although it may feel like it, litigation is not actual war, so handle opposing counsel professionally. The tone you strike with the judge should be similar to how you deal with opposing counsel: The courtroom isn't the place for yells, insults or anything of the like. None of this garners favor with the judge. Instead, when opposing counsel is speaking, do not interrupt. If opposing counsel interrupts you, respectfully wait for the judge to weigh in (he or she will), and you will gain the upper hand. Again, you are there to have a conversation with the judge, so if opposing counsel speaks directly to you, ignore it.

Also remember that the record is unforgiving. That angry email you sent at three in the morning to opposing counsel can always come back to haunt you. Thus, be mindful of how you deal with opposing counsel outside of the courtroom too. Indeed, far from the strictures of the courtroom, it can be tempting to engage with opposing counsel. But don't. Always be professional.

3. Never read an argument.

Next, prepare your oral arguments -- but do not stand up and read them. Memorizing is just as bad. Garner notes in "Making Your Case" that, besides your opener, when you memorize your argument, "[y]our audience can tell -- and it makes you seem to be not advising and reasoning with the court, but talking at it." Instead, Garner says: "Memorize the preferred sequence of your ideas, and approach the lectern with no more than a few outlined points." Cool and confident, armed with a small outline (with other materials resting at a nearby table, if needed) is one of the best ways to handle oral arguments. Moreover, listening to someone read an argument, is, well, boring. So do not risk the judge getting bored!

4. Deftly handle questions.

Many lawyers fear a judge's questions -- and sometimes, rightly so -- but in general, you should welcome questions and turn them to your advantage. Here are five tips about handling questions:

First, listen carefully, and if necessary, ask for clarification. For example: "If I understand your question correctly, you are asking whether ..." is better than answering the wrong question. Second, never postpone an answer. "I'll get to that point later" is not an acceptable response. Just answer the question, even if the answer is "I don't know." Third, if you are able to, begin with a "yes" or a "no." Then pivot or add a "but" to qualify your response if needed. Fourth, willingly handle hypotheticals. On an appellate panel, you may be faced with a judge asking you how to apply the rule of law to different facts; even if it seems random, the judge still expects an answer.

Finally, after answering a question, Garner says to "transition back into your argument -- smoothly, which means not necessarily at the point where you left it." Be prepared to deliver your arguments in any order and most of all, be flexible.

5. Do not snatch defeat from the jaws of victory.

Sometimes saying nothing is your best course of action. Pay close attention to the questions a judge poses to the other side, because it often reveals how they may rule on the issue. This not only lets you see your opponent's weaknesses, but also gives you an insight into the judge's thinking. And if you appear to be winning, do not create more problems for yourself. Do not re-hash old arguments or, worse, bring up new ones. Often the best argument is none at all. Know when to shut up!

Conclusion

When it comes to oral and written advocacy, in an interview with Garner on legal writing, Associate Justice Ruth Bader Ginsburg offered this: "be scrupulously honest." Take this to heart. Maintaining credibility with the court ought to be valued above all else -- otherwise, your arguments are not to be trusted. It takes years to build your reputation as a lawyer, but only minutes to forever mar it in the eyes of a judge. Your clients and career hinge on your ability to interact with the court and to write and argue both simply and persuasively. Build your argument carefully: Cut to the chase, use a syllogism, and focus on the judge as your reader. Then, be confident in your tone and arguments: Be natural, never read, and deftly handle questions from the court. Commit to memory the tips mentioned here and give judges what they want -- a reason to side with you.

#313

Ben Armistead


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