Wednesday, February 13, 2008

Don't Ask the Judge for an Emotional Investment

It may be hard to quantify, but we can easily define a lawyer's job in MoneyLaw terms: make best efforts to bring about a favorable outcome for the client. To accomplish this job, we spend much of our time writing to the judge in the form of pre-trial and post-trial motions. Teaching lawyers how to write for judges is currently in vogue. Most of the advice follows some variation of: "The judge is overworked, so keep your writing short, simple and clear." This advice is helpful; how we write for a judge is much different from how we write a law review article.

Another major component to consider is the role of emotional investment. In most other forms of persuasive writing, we ask the reader for an emotional investment. We can ask for it because our readers usually do not have a specific job dependent on our writing. They are free to believe in us or not without any real consequence. Judges are different because they have a specific job — to apply the current state of the law to the facts of this case. They must perform this job without making an emotional investment in one of the parties.

Many lawyers mistakenly structure their arguments so that they demand an emotional investment from judges. Their arguments ask the judge to cheer for them, to grant the relief because the judge wants to grant it. Their prose is emotionally charged, laced with opinions about the facts and attacks on the other side's reasoning. It conjures images of Conan smiting his enemies with a broad sword. This is a bad way to convince a judge who is charged to remain impartial. Many judges interpret this type of writing as overcompensation for a weak legal position. I have read a lot of Conan briefs, but I have yet to see one obtain the relief it requested.

So why do lawyers and clients love the Conan brief if it does not help generate a favorable outcome? Clients feel like they are destroying the other side. Lawyers know clients love it, and they justify using it under the guise of zealous representation. But zealous representation means making your best efforts to generate a favorable outcome. The Conan brief makes the judge uncomfortable by asking the judge to make an emotional investment that she has sworn not to do. It also makes the brief more difficult to read because the judge has to filter out the Conan aspects. All that time and money spent on developing the Conan aspects should have been spent mastering the applicable substantive and procedural law.

The client is best served with an understated approach, which takes more skill and intelligence than writing a Conan brief. Understated does not mean boring; it means giving the judge what she needs to make her decision without making an emotional investment. If written properly, this style of writing is much more interesting for the judge because she does not have to waste time filtering out the Conan elements. Give the judge the facts rather than opinions and exaggerations about the facts. Give the judge the substantive and procedural law that controls, without exaggerating the holdings. Then show how the law requires the result you are seeking.

The judge should grant your relief because she has to, not because she wants to. A brief written in this style requires no emotional investment by the judge and has a much better chance of becoming successful. Even if the brief loses, you will build up goodwill with the judge for future briefs. Let the other side waste their time and money with the Conan brief. Consider, finally, that the feeling of having made an impartial and fair decision is itself an emotional state--the emotional state of "I am a fair, dispassionate judge." From what I can tell, it is a state that judges love to be in.


Blogger Timothy K. Armstrong said...

This strikes me as good advice as a general rule, if we assume (probably reasonably) that judges approach most cases without built-in assumptions about which side should prevail. But it seems like there is a pretty important exception to be made when you are writing to a judge who already has a predilection to favor the other side (whether for emotional reasons, political considerations, or any of the other things that move judges off of strict neutrality). If you are representing a criminal defendant before a judge known to hold strict law-and-order views, for example, a touch of Conan (to jolt the judge out of his/her intertia) may be your client's only realistic hope. I suspect many lawyers have had the experience of losing a case even though they had both the facts and the law on their side, because the judge's empathy (or political persuasion, or whatever) towards the other side prompted them to make new law.

2/14/2008 10:51 AM  
Anonymous shg said...

That sounds great in a world with perfect (intelligent, unbiased) judges. I've never seen that world, however.

In my world of litigation, I prefer to get some background on my judges, figure out their point of view and structure my arguments to appeal to their preconceived notions. And if they aren't that bright, use only small words, concrete examples and type very slowly.

2/14/2008 1:49 PM  
Blogger Stephen R. Diamond said...

Law school legal process courses often teach the Legal Realist theory that judges decide cases by the equities, and judicial reasoning reasoning merely rationalizes moralistic opinion. This academic myth perpetuates Conan briefs.

3/10/2008 10:13 PM  

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