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American Bar Association - Defending Liberty, Pursuing Justice

FALL 2010

Vol. 7, No. 1

LITIGATION

 

The Battle of Persuasion: Harder Than It Looks

By Cecil C. Kuhne III

The primary tools of the litigator's trade are words, and the lawyer who uses them adroitly in his arguments maintains a distinct advantage over his adversary—whether in the courtroom, in negotiations, or in writing an appellate brief.

A litigator starts with the words of others—statutes, judicial opinions, contracts, and the myriad other sources of language that eventually lead to litigation. An effective advocate then strives to legitimately parse and interpret those words to the advantage of the client, and he does this by using his own words to craft a solid argument that will prove persuasive in communications with the court.

Lawyers typically work with challenging legal and factual situations that must be explained to a judge who has limited time to devote to the resolution of issues before him, no matter how interesting or important. This makes it even more imperative that the ligitgator present the best argument in the most efficient way possible.

If the judge's attention is drawn to faults of logic or expression, the client will ultimately suffer as a result. The risk is too great that if the argument is not made effectively, the busy judge may misinterpret what you are trying to say. A judge simply doesn't have time to decipher a poorly prepared argument, and the lawyer's credibility with the court will be damaged in the process.

Your analysis must provide the court with a quick and clear view of the legal landscape, without unnecessary distractions. The final product will be evaluated by how well it educates and convinces the judge that the reasoning and authorities contained within are correct. The key to building a great argument is to design a logically reasonable theory, and then reinforce it with compelling propositions and authority. The most persuasive arguments are not necessarily the most emotionally or morally moving. They are simply the ones with which the court is most likely to agree.

An argument, after all, is much more than a random collection of vague assertions that are abstractly positive for the advocate's client and abstractly negative for the opposing party. A collection of assertions becomes an argument only when they coalesce into a coherent presentation that firmly convinces the judge of their truth and fairness.

It is impossible, of course, to write more clearly than you think. Thought and expression are inseparably linked. Painstaking care in expressing what you want to say will help you avoid the hazy writing that a less careful approach produces. The goal in all of these efforts is clarity, conciseness, and forcefulness.

To write clearly, you must not only gather your material and carefully organize it, but you must think deeply about it. You must ponder the relationship of facts and law to one another, evaluate the importance of one point over another, and then construct a logical plan of presentation.

Considerable time must be spent digesting, organizing, and thinking through the implications of the material before you even begin to write. Only when you see clearly what is central to the argument can you persuade the court to focus on those points, instead of dispersing attention over a morass of details where nothing significant stands out.

From the pages of the arguments composed by the experts whose work is featured in this book, several principles clearly emerge:

Tailor Your Argument.In your attempts to persuade the judge, logic certainly has its place, but it isn't everything. First of all, you must tailor your argument to the specific audience you seek to persuade. To determine what will appeal to the court, you need to know not only what the court has held, but something about the viewpoints of its members. By reading previous opinions of the judge, you can gain an appreciation of his or her legal mindset. If those views differ from your position in the litigation, this knowledge will give you the opportunity to make distinctions that might change the judge's mind.

You must also delve deeper into the judge's values and personality. For this reason, it's imperative that you contact those who have personally dealt with the judge to learn more about his or her particular mannerisms, style, and idiosyncrasies. This information will then allow you to fashion an argument that the judge will find most appealing.

Establish Your Trustworthiness. There is really only one way to establish your trustworthiness: you must be scrupulously honest in how you present the facts and the applicable law to the court. Opposing counsel will be quick to point out any misstatements, distortions, or omissions you make, and as a result, the court will quickly lose confidence in your reliability.

Admit Unfavorable Facts.When you are forthcoming about problems or weaknesses in your case, you enhance your credibility. If you initially disclose bad facts, you significantly minimize their impact.

Avoid Extreme Posturing.It is tempting to simply argue your client's position in the strongest possible terms while belittling the opposing argument. If, instead, you give your adversary his due while arguing your own case in a moderate and reasonable light, you rise admirably above the fray.

Demonstrate Your Knowledge of the Facts. A lawyer who is perceived as intimately familiar with the facts of the case will in the end prove far more persuasive. You can best do this by organizing your argument logically, explaining the source of your facts, and corroborating all of your assertions.

Thoroughly Research the Issues. Before presenting a legal analysis on any matter, it's essential that you conduct a thorough search of potentially relevant material, so that all of the appropriate cases, statutes, and regulations are considered.

Develop a Theory of the Case.After gathering all of the relevant information about the case, you must carefully analyze it. During this process, you must identify the fundamental reason why your client should win in the end.

Select Persuasive Points as Themes.As you scour the material you have gathered, you should develop short, fact-based statements of why equitably—rather than just legally —your client should prevail. The best themes are grounded in common sense and shared human experiences like fairness and honor, and therefore are those that will resonate emotionally with the judge.

A few other suggestions about themes: They should be brief, pithy, and partisan, but they must not appear contrived and manipulative. They should be consistent. And they should be repeated often, but not so much as to be annoying.

Emphasize Visual Aids. Studies show that people are strongly persuaded by what they see. You should, as appropriate, use charts, graphs, and other helpful visual aids to enhance comprehension and to render your points of argument more memorable.

The examples of legal argument set forth in this book demonstrate the truth of these axioms. They also reveal that a well-constructed argument invariably contains the following components:

  • forceful clarity;
  • strong introduction;
  • helpful overview;
  • well-stated factual background;
  • short paragraphing;
  • thorough case history;
  • reliable statutory construction;
  • appropriate legislative history;
  • stellar discussion of case law;
  • effective challenges to opposing arguments;
  • necessary policy considerations; and
  • obsessive-compulsive organization.

Legal writing is a highly structured form of expression that requires an effective application of the facts at hand to the controlling rules of law. A legal writer cannot adequately approach this task without a great deal of planning, a process that is much like that of constructing a building. The architectural plans must be thoroughly conceived, or the resulting structure will not function well.

When you have managed to integrate the facts of your case into a seamless argument like those featured in the following pages, you will have successfully built an argument that you can be proud of. You will also have constructed an argument that can withstand the brutal onslaught of even the most skilled adversary. And that after all is said and done, is not a terribly bad way to spend the day.

Do you want to learn more on this subject? If so, click here to purchase the author’s book. GP/Solo Division members automatically receive a discounted price.

Cecil C. Kuhne III is a litigator in the Dallas office of Fulbright & Jaworski L.L.P., where his practice deals primarily with commercial and product liability matters.

This article is a excerpt from the book Building Your Best Argument by Cecil C. Kuhne III, pp. 1–4, Copyright 2010 © by the American Bar Association. It was published by the ABA GP/Solo Division and available to members of the GP/Solo Division for a discounted price through the link provided at the end of this article. Reprinted with permission. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

© Copyright 2010, American Bar Association.