Sunday, February 24, 2008

Sometimes They Make Your Point For You

Previously I posted a MoneyLaw approach to brief writing that my firm uses with success. Scott Greenfield took issue with my position and wrote a Conanesque response. Lacking authority or a Moneylaw thesis, Greenfield went with hyperbole: he claims never to have practiced in a world with smart, unbiased judges, and maintains that the judge will laugh at you if you submit an understated, even-keeled brief. Stripping the hyperbole from his post, it seems that Mr. Greenfield's only substantive statement is the last sentence of his post: "In my world, you figure out what will be persuasive to your particular judge and then make it happen."

As Orin Kerr showed (12/11/07 at 4:35 p.m.), Mr. Greenfield tends to cap his rhetoric by self-declaring reality and fantasy worlds. As Professor Kerr pointed out, that's a dangerous road to be on.

My post cautioned against writing where you demand an emotional investment from the judge. I refer to this type of writing as the Conan brief; Bryan Garner calls it being a Rambo Writer; Steven D. Stark calls it the Bobby Knight-Stone Cold Steve Austin School of Written Advocacy. Whatever you call it, in my experience this style of writing is not nearly as persuasive as it is fun to write. You know my view; let's examine what the authorities say about such tactics as "yelling bad words at the other side, especially the lying, scheming rats who lie and scheme":

Read the rest of this post . . . .Why to Avoid the Tools of the Conan Brief

Stark warns about the effect hyperbole has on your reader: "the only conclusion most readers draw is that these writers are as egomaniacal as they seem." Writing to Win at 39. "Able litigators make clear arguments quietly, in contrast to the typical litigator, who screams out an analysis in a way likely to be ignored." Id. at 124.

In The Winning Brief, Garner offers a number of helpful quotes:

"When you overstate, the reader will be instantly on guard, and everything that has preceded your overstatement as well as everything that follows it will be suspect in his mind because he has lost confidence in your judgment or your pose." The Elements of Style.

"Understatement will serve you far better [than hyperbole]. If you establish a reputation for understatement, judges will consider your contentions carefully even if they appear erroneous on first blush." Harold G. Christensen

"The seasoned advocate accordingly reins in any emotions, so that he or she can concentrate on the factual, legal and equitable issues. The advocate knows that an argument in court is not an occasion for anger, like a squabble among bad-tempered relatives." Girvan Peck

"I like, to the point of being unduly swayed by, a brief that contains not one pejorative adjective or innuendo concerning one's opponent or the trial judge." The Honorable Frank M. Coffin

"But you don't want to be the street corner huckster, you want to be the guide your reader can trust. So be careful about every sentence you write. Understate rather than overstate. Better yet, don't evaluate at all. Let your reader do it for you." James McElhaney

Or you may prefer the Litigation Manual Pretrial, edited by The Honorable John G. Koeltl and John S. Kiernan, which states: "In fact, the judge's usual reaction to such 'jury argument' is to be professionally offended." Id. at 110. "If the judge has the idea you are asking for an emotional response, he may conclude that you are admitting that you cannot persuade him intellectually." Id.

Jennifer S. Carroll argues against making emotional jury arguments to judges in an article on appellate advocacy. She quotes former Florida Supreme Court Justice Leander Shaw. He describes emotional argument as "very unimpressive" and "the advocate loses credibility immediately."

Basically, if you stick with the Conan brief, your reader will most often have this reaction, which does not help your client:

A smarmy response might be "these are just the opinions of some pointy-headed academics." But keep Orin's words in mind, "it shows the dangers of characterizing disagreement as a contest between 'reality' and an ivory-tower 'fantasy world'; that kind of overblown rhetoric is fun to write, but it seems a bit silly if the ivory tower ends up being right." Besides, these are legal writing experts citing respected litigants and judges.

My thesis — and the reason I chose "MoneyLawyer" as a moniker (not merely as a catchy name, Mr. Greenfield) is that I think we can analyze law practice like Billy Beane analyzed baseball. I suspect there are lawyers, and types of law practice, that are systematically undervalued by the market. I also suspect that professionalism is systematically undervalued. (More on why this might be so, and how one might start gathering the stats needed to validate or invalidate this hypothesis, are for future posts.)

Maybe one can't escape Conan in criminal practice. That is one difference between me and Mr. Greenfield; I am a civil litigator. (I would suspect, however, that non-Conan criminal lawyers might be some of the ones systematically undervalued by the market.) From what I have seen, Conan tactics come from an entrenched subjective belief of advocacy. Loud, obnoxious lawyers with megaphones believe they become more convincing the louder and more emotional they yell. That is the whole point of my MoneyLaw thesis — I am not interested in others' entrenched subjective views of advocacy. I am interested in identifying the tools that will most help me persuade the judge.

At any rate, I think Mr. Greenfield's ham-handed broadside actually proves my point. I know I wasn't convinced.

[Full disclosure: I have nothing against Conan the Cimmerian; the once and future King of Aquilonia is one of my heroes. I would also agree with Mr. Greenfield that it is fun to crush your enemies and to see them driven before you. I just think my way works better.]


Anonymous Anonymous said...

Isn't it odd that you devolve to ad hominem attack and a straw man argument to support your point that it's best to be "even-keeled."

As for the "MoneyLawyer moniker," beyond being pretentious, it demonstrates a lack of intellectual fortitude. In this case, hiding behind a pseudonym is probably a wise choice.

2/24/2008 3:33 PM  
Anonymous shg said...

I'm sorry, Money (may I call you Money? Mr. Lawyer sounds so formal) that I hurt you so deeply. I feel terrible that I've put you through such obvious pain and anguish.

You can attack me anytime you want if it makes you feel better. Again, my sincere apologies.

2/24/2008 7:39 PM  
Blogger Stephen R. Diamond said...

Almost any competent appellate attorney will agree on the counter-productiveness of overt emotionalization. Manipulating the judge to take your side is broader, should be more controversial, and includes well-accepted practices, such as presenting irrelevant facts morally favorable to your client in the statement of the case. Your analysis of judges' defensive responses to appeals for partiality argues against the unthinking application of routine tricks of the trade.

3/12/2008 3:27 PM  
Blogger Stephen R. Diamond said...

I reference this post at, expanding the discussion to legal education's role in perpetuating naive styles of brief-writing.

3/15/2008 11:57 PM  

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