Wednesday, February 20, 2008

Punditry In A Perfect World

One of the things that blawgers (myself excepted, of course) like to do is give broad advice to others about how to be the best lawyer you can be. Yes, it can be a bit pedantic, but if you can't be pedantic on a blawg, where can you be?

Since I want to be the best lawyer possible too, I paid close attention to the newest addition to the MoneyLaw crew, who likes to call himself "MoneyLawyer." I know, catchy name, right?

Full disclosure: After begging and pleading with Jim Chen, he's agreed to let me sneak in every once in a while to post something over at MoneyLaw just to add some comic relief, plus bring in the low-brow crowd that would otherwise be out drinking beer and munching on hard-boiled eggs.

Now I wish I had some more info to share about MoneyLawyer, because I really want to know where he practices. Clearly, it's nowhere I've ever been, because he posts about how to win with judges who are smart, unbiased and interested.
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.
How he got an old picture of me is anyone's guess.

MoneyLawyer explains that while judges view the "Conan Brief" as a loser, an epistle of weakness and clarion call of vapidity, clients love them. I can't disagree with that point. My clients derive great pleasure from yelling bad words at the other side, especially the lying, scheming rats who lie and scheme. But if we can't go for the emotional investment, whats left?
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.
Is it much more interesting? That's hard to say, since you'd have to wait for the judge to stop laughing before you would get a straight answer.

Fishnet stockingsIt's not that I disagree with much of what MoneyLawyer suggests. Good legal writing is good legal writing, and persuasive is persuasive. But where I live, the idea that judges are above mere mortals is sheer fantasy. It's not that there aren't smart judges (there are) or fair judges (there are) or judges who wear a black cocktail dress and fish net stockings under their robes (I'm speculating on this one), but that all the judges I know are real people with typical foibles.

No doubt I'll get the standard handful of emails after this post telling me (again) that I'm despoiling the image of lawyers as dignified professionals by letting our little secrets out to an otherwise ignorant public, but who cares. If you're going to hold yourself out as having the answer, then the least you can do is have the right question. If you live in a world of perfect judges, then MoneyLaw's disdain for the Conan Brief is the perfect solution. In my world, you figure out what will be persuasive to your particular judge and then make it happen.

Editor's note: This piece is cross-posted at Simple Justice.


Anonymous Ann Bartow said...

And the disembodied legs have exactly what to do with the post?

2/23/2008 10:53 AM  
Anonymous shg said...

That would be a certain male federal judge caught wearing "a black cocktail dress and fish net stockings under their robes." You have to keep up on gossip to get the more sublte nuances.

2/24/2008 7:35 PM  
Anonymous Ann Bartow said...

Actually I'm perfectly competent at clicking on a link. My point was that the sexism and homophobia on your part was unnecessary, and not relevant to the point of your post.

2/24/2008 10:39 PM  
Blogger Stephen R. Diamond said...

Ingrates respond to perfect advice by asserting it applies only to a perfect world, but sometimes perfect advice applying to our world becomes available. To avoid demanding an emotional response from the judge is such advice. The understatement recommendation is adaptation to imperfection, not its denial. The more imperfect your judge, the more understated should be your briefs. The present disagreement is not over how perfect is the world but what foibles influence the court. MoneyLaw's critics are less realistic than shallow in psychological perception. They don't see that a version of Newton's Third Law applies to the psyche.

3/12/2008 1:30 AM  

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