Tuesday, April 15, 2014

Pathos and Persuasion

Pathos is the use of emotion to persuade. Unsurprisingly, pathos is often employed in criminal cases. Last week we looked at Simmons's brief in the Roper case, where Simmons argued that the death penalty is cruel and unusual punishment for minor offenders. Look at Simmons's lawyer’s use of pathos to try to convince the Supreme Court to overturn prior 8th Amendment precedent:

“[P]olice arrested Simmons, a 17-year-old high-school junior with no previous criminal convictions, at his school. Simmons was taken to the police station, where he waived his Miranda rights and was interrogated. Simmons initially denied involvement in the crime. After nearly two hours of interrogation, during which police accused him of lying, falsely told him that Benjamin had confessed, and explained that he might face the death penalty and that it would be in his interest to cooper-ate, Simmons began to cry and asked to speak to one of the detectives alone.”

Brief for Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *1-2 (internal citations and quotes omitted).

You can also use pathos to make other parties look bad. Simmons’s counsel focuses on the bad behavior of an adult “friend” of Simmons, Moomey, who claimed to have heard Simmons planning the murder but did nothing to stop it:

Moomey - a 29-year-old who had served a prison sentence for burglary and assault - testified that he had a party at his house “every night” at which he drank until he passed out. A group of neighborhood teenagers, often including Simmons…attended these “parties.” Moomey explained that the teenagers wanted to come to his house “because most of them get picked on [b]y their parents,” and that they mowed his lawn, cleaned his house and car, and gave him rides in return for being allowed to “hang out” with him. The teenagers called themselves the “Thunder Cats,” and referred to Moomey as “Thunder Dad”
Moomey claimed that, at one of the nightly parties at his house before the murder, he had heard Simmons…discussing a plan to burglarize a house and kill the occupants, and that Simmons had told the others that “they could do it and not get charged for it because they are juveniles.” Moomey also alleged that, on the evening of September 9, Simmons had come to Moomey's house and told him that he had killed Mrs. Crook because she had seen his face. Moomey admitted that, after this conversation, he failed to contact the police until he was told they had his name and wanted to talk to him and that he was concerned about testifying because he believed he was being investigated in connection with the murder.

Id. at *3.

Look how Simmons’s counsel employs pathos. He doesn't say outright: Simmons is a scared kid and Moomey—whose testimony all but ensured Simmons received the death penalty—is an unsavory person who used kids like Simmons. Instead, he uses pathos subtly to lead the reader to that conclusion.

You can also use pathos effectively in other types of cases. Last week we looked at logos in John Roberts’s brief in the Alaska v. EPA case. Roberts also uses pathos effectively in that brief:

The partnership agreement between [native Inupiats and the Mine owner] provides for the training and employment of a local work-force, with caps on annual production to ensure long-term employment opportunities for the region. The agreement also provides for a committee of local Inupiat elders to oversee mining operations. The committee is authorized, for instance, to close the mine's road to protect migrating caribou. Royalty payments to…Inupiat shareholders-to be shared in part with all other Alaska Native corporations-are expected to total about $1 billion over the life of the mine. With nearly 600 workers, the mine's payroll represents over a quarter of the borough's wage base. Prior to the mine's opening, the average wage in the borough was well below the state average; a year after its opening, the borough's average exceeded that of the State.

Brief for Petitioner, Alaska Dept. of Environmental Conservation v. United States Environmental Protection Agency, 540 U.S. 461 (2004) (No. 02-658), 2003 WL 2010655, at *9 (internal citations and quotes omitted).

Follow these tips to use maximize pathos:

-Too much of a good thing…is too much. Pathos is best employed subtly. Avoid over-the-top pathos. Use facts, not adjectives and adverbs, to evoke an emotional response in the reader. Remember how John Roberts uses pathos in the Alaska brief. Nowhere does Roberts say: “The Red Dog Mine is critically important to Alaska and its great citizens—many of whom are heartbreakingly destitute.” Instead, he describes, in detail, how important the Red Dog Mine is to Alaska and its residents by talking about all the things the Mine does for the region—provides jobs, protects wildlife, pays native tribes for use of their land etc. The Roberts brief doesn’t hit the reader over the head with pathos. Instead, the Roberts method leads the reader to the writer’s conclusion. And the result is just what Roberts wants—for the reader to believe that the Red Dog Mine is very important and provides many benefits to Alaska.

-Pathos isn’t going to get you far without logos. Your client can be the most sympathetic party in the world, but unless the client’s position is legally and logically sound, pathos likely won’t do you much good. You must be sure to discuss the legal principals at issue and explain how the law supports your sympathetic client’s position.

-Consider starting with context, not facts. Good litigators use pathos to “set the scene” for their legal arguments. Look how Roberts does that in the Alaska brief—he doesn’t start by talking about Low NOx, SCR, or BACT. Instead, he sets the scene by talking about how the mine was discovered and what the mine means to Alaska. Then, when the reader has a “fuzzy feeling” about the mine, Roberts launches into a discussion of how Alaska handled the permitting decision.     

Friday, April 11, 2014

Amusing Alliteration

Alliteration is a stylistic device and occurs when words in close proximity share the same first consonant (or consonant sound). Judges sometimes use alliteration to make points or emphasize certain words. For example, in discussing claims of sexual harassment in the workplace, the Eleventh Circuit has noted that while severe harassment can be traumatic, that harassment "cannot be corrected without the cooperation of the victims." Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1290 (11th Cir. 2003) (internal quotations and citations omitted).

Judge Young, from the DC Circuit, has described police power, itself an alliteration, as "[a]n axiomatic but amorphous aspect of sovereignty." Amerisource Corp. v. United States, 525 F.3d 1149, 1152 (D.C. Cir. 2008). In another case, Judge Boggs, of the Sixth Circuit, dissented from a denial of an en banc hearing in a case involving a school board's right to open its meetings with prayer. The panel that heard the appeal found the prayer violated the Establishment Clause. In criticizing that holding, Judge Boggs noted: "Thus, if they are serious about suppressing those perceived evils, they must believe that the Constitution allows Marx but not Moses, Oprah but not Obadiah, and Emerson but not Ephesians." Coles v. Cleveland Bd. of Educ., 183 F.3d 538, 540 (6th Cir. 1999).

And Justice Cardozo has even provided a fun alliteration. In Murphy v. Steeplechase Amusement Co., the plaintiff suffered a knee injury on a ride aptly known as the flopper. Cardozo wrote: “The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation.... The timorous may stay at home.” 250 N.Y. 479, 482-83 (1950).

Some law-related alliterations include:
-sovereign citizen
-malice murder
-aggravated assault
-friendly fire
-symbolic speech
-adverse authority
-hell or high water (a contract clause)

Can you think of others?

Happy Friday!

Tuesday, April 8, 2014

Logos in Litigation

According to Aristotle, there are three types of persuasion: logos, ethos, and pathos. Logos is persuasion through reasoning and the effectiveness of supporting evidence. Because lawyers often rely heavily on precedent to support their positions, logos is used more often by lawyers than the other two techniques. But logos is about more than citing a case, explaining its holding, and telling the court it should follow that case. Logos is about convincing the court that your position is the only sound one.

When John Roberts was a litigator, he represented Alaska in a case against the EPA. Alaska intended to allow a mine, a large, private employer, to use a certain pollution control technology, Low NOx, on a new generator it had built. The EPA claimed that Alaska should have required a different control technology, SCR, and that Alaska acted arbitrarily and capriciously by finding Low NOx was the best available control technology (BACT). Alaska couldn’t dispute that installing SCR (rather than Low NOx) on the new generator would have resulted in lower emissions from that generator. But Alaska had struck a deal with the mine, and Roberts used the logic behind that deal throughout his brief:

Recognizing the mine’s unique and continuing impact on the regional economy of the Northwest Arctic Borough, [Alaska] determined that in light of SCR’s “excessive economic cost” —$2.9 million in capital costs with annual operating costs approaching $635,000—SCR was not economically feasible and that Low NOx was BACT for the MG-17 generator. Yet because [the mine] had agreed to install Low NOx on all its generators, [Alaska’s] permit decision was expected to result in lower overall NOx emissions than would occur if SCR—the EPA’s preferred technology—were installed only on the [new] generator.

Brief for Petitioner, Alaska Dept. of Environmental Conservation v. United States Environmental Protection Agency, 540 U.S. 461 (2004) (No. 02-658), 2003 WL 2010655, at *13 (internal citations and quotes omitted) (emphasis in original).

Roberts lost, but his argument is a wonderful example of the power of logos. Think of the logic: how can Alaska have acted arbitrarily and capriciously if the control technology it selected would result in lower overall emissions?

We see a different use of logos in a brief filed on behalf of Christopher Simmons, a man sentenced to death in Missouri for a murder he committed when he was 17 years old. Simmons argued that the death penalty was cruel and unusual punishment for adolescent offenders. In 1989, the Supreme Court had addressed that very issue in Stanford v. Kentucky, finding that the death penalty was not cruel and unusual punishment for those who were 16 or 17 years old when they committed the crime for which they were sentenced to death. So Simmons couldn’t rely on precedent—he was arguing for a change in the law. Eighth Amendment principles are measured by “evolving standards of decency.” What did Simmons do? He argued that the majority of states and the rest of the world recognize that the death penalty is cruel and unusual for those under age 18:

In the 15 years since [Stanford] that decision, advances in the scientific understanding of adolescent development, and the consistent movement by legislatures and juries away from imposition of death on juvenile offenders have demonstrated that capital punishment of those under 18 is inconsistent with our society's evolving standards of decency. The execution of juvenile offenders - like that of mentally retarded offenders is both disproportionate to their personal moral culpability and contrary to national and worldwide consensus.

Brief for Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *10 (internal citations and quotes omitted).

Simmons backs up those assertions with statistics showing that since Stanford, numerous states and the federal government had disallowed the death penalty for juveniles and the execution of juvenile offenders had become increasingly rare, even if states that hadn’t outlawed the death penalty for juvenile offenders. And, perhaps even more effective, Simmons shows that executions of juveniles essentially ceased after 1989 in all except a few countries:

[Since 1990] only seven countries other than the United States are believed to have executed juvenile offenders: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Only Iran and Pakistan have executed more than one juvenile offender in that time. These sporadic and isolated executions of juvenile offenders are not countenanced even by the countries where they took place; all of them have either enacted prohibitions on the execution of juvenile offenders or publicly disavowed the practice.

Id. at *49.

Simmons’s logic is apparent—Can all other nations (except seven) be wrong?

How can you employ logos to persuade? Here are a few tips:

-Use peer pressure. If your jurisdiction hasn’t addressed an issue or if you’re arguing for a change in the law, cite all the states or circuits that have adopted the position you advocate.

-Rely on the effect of stare decisis. If a rule of law or interpretation you’re advocating is longstanding, highlight that. If a rule has been the law for 100 years, cite both old and new cases to show that multiple courts have considered the issue and decided it in a way that supports your client.

-Appeal to common sense. Just like Roberts, appeal to the common sense of the position you advocate.

-Target particular judges or justices. If you know a judge or justice’s background and leanings, use that in your favor. If you’re appealing to a textualist, make plain language/ordinary meaning arguments. Even better, cite previous orders or opinions by that judge or justice, even if those citations are only for general principles.        


Tuesday, April 1, 2014

The Fork in the Citation Road

Lady (Legal) Writer,

What’s your opinion on the in-text versus footnote citation debate? Is one way correct or is it a matter of preference?
--Footnote Fan
Dear Footnote Fan,
I’m going to give you a lawyerly response to this one: there is no "right" answer. I use in-text citation because that’s what I learned in law school. I’ve used footnote citations in the past, but I don’t like them as much. As a practitioner, I felt that footnote citations were less persuasive—I wanted the court to know exactly what authority I was citing (because my authority was good—I wasn’t stretching).

And as a law clerk, I want to immediately know the authority cited. Is it recent, binding precedent or merely old, purportedly persuasive precedent from another jurisdiction? It’s easier to hide non-binding precedent in a footnote than in the text, so I check footnote citations extra-carefully to see what might be lurking in them. But I don’t think poorly of lawyers who use footnote citations, and the citation scheme, by itself, doesn’t have any impact on the persuasive value of the brief (at least not any impact that I’m aware of).    

Of course, there is much debate on this topic. Bryan Garner strongly believes in footnotes. According to Garner, footnotes make writing clearer by allowing the writer to shorten paragraphs and vary sentence structure. And, if you believe Garner, in-text citations make reading more difficult. One of the latest Garner articles on this topic appeared in the February 2014 ABA Journal.
Others, such as Judge Posner, disagree. According to the in-text proponents, readers have to work too hard to find information in footnotes, and footnotes don’t allow for continuous reading. Posner and others also argue that lawyers are used to reading documents with in-text citations and aren’t distracted by them, as Garner claims. At least two current Supreme Court justices, Roberts and Thomas, have said they prefer in-text over footnote citations. You can find a 2001 article by Judge Posner on the issue on the American Judges Association website.
Ross Guberman, of Legal Writing Pro, suggests resolving the conflict by using in-text citation only at the end of sentences, not in the middle. I agree 100% that middle-of-the-sentence citations make reading very difficult. Consider the difference in readability between these two sentences:
In Dillard Department Stores v. Silva, 148 S.W.3d 370, 372 (Tex. 2004), the Texas Supreme Court outlined the shopkeeper’s privilege, which allows a shopkeeper to detain a suspected shoplifter in a reasonable manner for a reasonable time while the shopkeeper attempts to determine the ownership of property.
Under the shopkeeper’s privilege, a shopkeeper may detain a suspected shoplifter in a reasonable manner for a reasonable time while the shopkeeper attempts to determine the ownership of property. Dillard Dep’t Stores v. Silva, 148 S.W.3d 370, 372 (Tex. 2004).*  
All this said, the outcome of your case isn’t going to hinge on the citation scheme you use. Just be consistent throughout your document. I can only think of two times where there is a “right” way: (1) when the local rules require a certain citation scheme; and (2) when you know the judge or justices hearing your case prefer one method over the other. Otherwise, the citation scheme you choose is a matter of preference.
*You might have noticed that “department” is spelled out in the first example and abbreviated in the second example. This is a BB rule. Per BB, you cannot abbreviate case names (except for the most common abbreviations, like Co.) if the case name is in the text of the sentence.      


Friday, March 28, 2014


I recently heard someone use the word "momager." I wondered, what do you call a word like "momager" that is a combination of other words? The answer--a portmanteau.

A portmanteau is a blend of the sounds and definitions of two or more words:

-smog (smoke + fog)
-guesstimate (guess + estimate)
-brunch (breakfast + lunch)

Many portmanteau words have become new, recognized words unto themselves, and we've forgotten that they're really blended words. Consider "gerrymander" (Gerry + salamander). The word was first used in 1812* to describe Massachusetts Governor Elbridge Gerry's redrawing of the state's election districts. One of the re-drawn districts resembled a salamander, and a new word was born.

We even find portmanteau words in the law, such as "breathalyzer," which comes from "breath" and "analyzer." And "carjack" (car + hijack). And the subject of the recent Hobby Lobby case--the contraceptive mandate in Obamacare (Obama + healthcare).

There are tons of fun portmanteau words:

-infomercial (information + commercial)
-staycation (stay + vacation)
-netiquette (internet + etiquette)
-emoticon (emotion + icon)

If portmanteau is ever a Jeopardy answer, you'll be ready! Happy Friday!

*However, the term "portmanteau" wasn't used until 60 years later. In his 1871 book, Through the Looking Glass, Lewis Carroll first used "portmanteau" (a piece of luggage with two compartments) to refer to a blended word.

Tuesday, March 25, 2014

Writing for Judges

NOTE: This post is adapted from my article, Writing for Judges, which first appeared in the Fall 2013 edition of the Federal Bar Association's Litigation Section Newsletter, SideBar.

Judges complain that practitioners don’t know how to craft concise, well-written briefs. Lucky for us, many things that irritate judges about the briefs they see are pretty easy to fix. The tips below are generally universal, but always defer to the first tip. If the local rules set strict guidelines for briefs and filings, follows those rules.

Follow the Local Rules
Few things annoy judges more than practitioners who fail to comply with local rules, such as rules setting margins, outlining font style and size, and establishing page limitations. Judges are less likely to respect the substantive points made by attorneys whose briefs don’t comply with the local rules. Why? Because failure to comply with the local rules means one of two things: either the attorney couldn’t be bothered to read the local rules or—worse—the attorney read them but didn’t care enough to comply with them. How can the judge trust the substantive work of someone who is either that lazy or that careless? We tend to forget the rules are there for a reason. Even if you don’t understand the reasons behind the local rules, comply with them anyway.

Use Introductions and Conclusions

Judges often complain that writers launch into their arguments or fact statements without giving the reader any context. Judges love short introductions that tell them the type of case and the issues, summarize the party’s position, and state the relief the party is seeking. A powerful opening sentence that concisely sets forth your strongest argument can set the tone for a persuasive, winning brief. If the brief or filing is lengthy, use a table of contents to set the roadmap. Judges appreciate informative conclusions as well. Use a short conclusion to summarize your client’s position and briefly remind the court of the authority you’ve cited to support that position and the reasons it should grant your motion. Keep introductions and conclusions short—I recommend no more than a double-spaced page for each.

Briefs are So Named for a Reason
Don’t feel compelled to fill every line of your 25 page (or 30 page or 50 page) limit. One of the most apt quotes I’ve encountered about legal writing says it all: lawyers suffer from an inability to say what is necessary and then to stop. Judges are busy—they appreciate brevity. I’m not suggesting you should sacrifice important points for the sake of keeping it short, but exercise discretion in choosing your issues—unless absolutely necessary, a brief or motion should probably be limited to 3 issues or fewer. Good points get lost in lengthy, verbose briefs, and untenable arguments dilute the strength of good ones. Fancy or esoteric words, unnecessary Latin phrases, and overly long sentences do nothing but lengthen your brief and distract the judge from the merits of your argument. And don’t belabor your points. Repeating the same position 15 times in a brief does not make the brief 15 times more persuasive. It just ticks the judge off and detracts from your credibility.

Organize Your Arguments in a Meaningful Way
Judges also complain about unorganized briefs. Use headings and subheadings to organize your points and thoughts. Even general headings such as Factual Background, Citation to Authority, Analysis, and Conclusion will help guide the reader. In considering the issues, judges often refer back to specific parts of the parties’ briefs—make it easy for the judge to find your arguments. A short recitation of pertinent facts is usually the best place to start (unless the court is so familiar with the facts that it is unnecessary to repeat them). Follow the factual background with an outline of the relevant authority and an analysis of the issues in light of the authority (including any counter-analysis to your opponent’s position on the issues).
Unless there is a good reason to do otherwise, you should start with your strongest argument. That said, if there are threshold, dispositive, or uncontested issues, don’t forget to address those first. For example, are you arguing a personal jurisdiction issue based solely on specific personal jurisdiction? Admit up front that the court lacks general jurisdiction—don’t make the court go through a general jurisdiction analysis only to learn you aren’t arguing it has general jurisdiction over the non-resident defendant. That would be frustrating to anyone and is especially frustrating to time-pressed judges. Also, don’t be afraid to make strategic concessions in your argument—they enhance your credibility as an advocate and give you the opportunity to show why unfavorable facts or law do not undermine your position. Judges strive to make fair decisions that are consistent with the governing law. Don’t make it difficult for them by making meritless arguments–or worse—frivolous ones.

Perform a Legal Analysis
You are responsible for convincing the judge your position is sound. You can’t just cite cases and expect the judge to do your analysis for you. Many judges say lawyers are good at citing relevant authorities but bad at analyzing their own cases in light of those authorities. Often, a lawyer’s analysis is simply a summary of the facts in a conclusory manner. This won’t cut it. The analysis should answer one question: Why should your client win in light of the facts and law? I try to make sure my analysis comprises 15-20% of any brief I write (e.g. 2-3 pages of a 15-page brief). I’ve found any less analysis generally isn’t enough—I haven’t done a complete analysis. And any more is too much, where I’m doing nothing more than beating the proverbial dead horse. And remember—never “fudge” the facts or law in your analysis or elsewhere in your filings. By doing so, you risk irreparable damage to your credibility and, as a result, your client’s case. Expect the judge to check your authority for accuracy.

Grammar and Style Do Matter
The goal of every brief should be to make it as easy as possible for the court to grant your motion. Judges have a hard time reading and understanding briefs replete with grammatical and other errors.You should know some core writing and grammar rules.If you don’t, invest in a short, helpful writing guide, such as Plain English for Lawyers or The Elements of Style.

Small Things that Are Really Big Things
Always remember that you are judged on your brief from the minute the judge picks it up. Judges have an easier time focusing on the substance of briefs that are well-formatted and professional. Don’t forget to:
• Number the pages of your brief.
• Spellcheck your documents.
Make sure your citations are correct so the court can locate the authorities you cite. If you rely on foreign or hard-to-find authorities, attach copies to your brief.
• Format your documents in a way that is aesthetically pleasing—choose appropriate fonts and margins and ensure the font style and size is consistent throughout.
• Avoid long paragraphs—particularly those occupying an entire page—and do not overuse block quotations or emphasis, or punctuate sentences with anything other than a period (unless you are citing from the record).

These are just a few suggestions to improve your written advocacy skills. I can’t promise you’ll win every motion if you follow these tips; however, I can promise the clarity and effectiveness of your motions and briefs will improve. And judges will appreciate that.