Understand that reason is paramount with judges and that overt appeal to their emotions is resented.
It is often said that a “jury argument” will not play well to a judge. Indeed, it almost never will. The reason is rooted in the nature of what we typically think of as “jury argument” –a blatant appeal to sympathy or other emotions, as opposed to a logical application of the law to the facts. Before judges, such an appeal should be avoided.
Appealing to judges’ emotions is misguided because it fundamentally mistakes their motivation. Good judges pride themselves on the rationality of their rulings and the suppression of their personal proclivities, including most especially their emotions. And bad judges want to be regarded as good judges. So either way, overt appeal to emotion is likely to be regarded as an insult. (“What does this lawyer think I am, an impressionable juror?”)
There is a distinction between appeal to emotion and appeal to the judge’s sense of justice—which, as we have said, is essential. Of course you should argue that your proposed rule of law produces a more just result, both in the present case and in the generality of cases. And there is also a distinction between an overt appeal to emotion and the setting forth of facts that may engage the judge’s emotions uninvited. You may safely work into your statement of facts that your client is an elderly widow seeking to retain her lifelong home. But don’t make an overt, passionate attempt to play upon the judicial heartstring. It can have a nasty backlash.
