The Art Of Persuading Judges
Communicate clearly and concisely.
In an adversary system, it’s your job to present clearly the law and the facts favoring your side of the case—it isn’t the judges’ job to piece the elements together from a wordy and confusing brief or argument. Quite often, judges won’t take the trouble to make up for your deficiency, having neither the time nor the patience.
The judges considering your case have many other cases in hand. They are an impatient, unforgiving audience with no desire to spend more time on your case than is necessary to get the right result. Never, never waste the court’s time. Having summoned the courage to abandon feeble arguments, do not undo your accomplishment by presenting the points you address in a confused or needlessly expansive manner. They must be presented clearly and briskly and left behind as soon as their content has been conveyed-not lingered over like a fine glass of port. Iteration and embellishment are rarely part of successful legal argument.
In a recent case before the Supreme Court of the United States, an appellant’s brief took ten pages before mentioning the critical fact in the case, then took another seven pages to discuss peripheral matters before setting forth the legal rule that governed the case. No judge should have to cut through 17 pages of pulp to glimpse the core of the dispute.
Avoid the temptation to think that your brief is concise enough so long as it comes in under the page or word limit set forth in the court’s rules—and more still, the temptation to insert additional material in order to reach the page or word limit. Acquire a reputation as a lawyer who often comes in short of the limits. “It’s worth reading carefully what this lawyer has written,” the judge think. “There’s never any padding.”
The power of brevity is not to be underestimated. A recent study confirms what we all know from our own experience: people tend not so start reading what they cannot readily finish.