The Conan brief

What part does emotion play in briefwriting? This question is debated in a pair of blog posts. The first, on MoneyLaw, decries what it terms the “Conan brief,” one that demands an emotional reaction from the judge:

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.

Scott Greenfield of Simple Justice questions MoneyLawyer’s post:

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 ....
...

It’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.

My own 2¢: Pathos plays a role in persuasion, just as logos and ethos do. Bryan Garner advises writers to invest their writing with honest feeling when appropriate. “Readers would probably be offended if briefs and judicial opinions about child custody, massive worker layoffs, abortion, or the death penalty completely ignored the human agony that these issues involve.”¹ But “[r]ecognizing this fact is not a license to emote all over the page.”² The trick is to evoke an emotional reaction, not to demand one:

Don’t say that something is unfair; show why it is, and let the reader conclude that it is.

Don’t say that somebody acted unprofessionally; explain what the person did, and let the reader decide.

...

Think of your job as this: you’re trying to induce the judge to seethe in indignation while never revealing you’re own indignation. That’s a tremendous challenge.³

__________
1 Bryan A. Garner, The Elements of Legal Style 174 (1st ed. 1991).
2 Id.
3 Bryan A. Garner, The Winning Brief 398 (2d ed. 2003).

Comments

[Stephen R. Diamond]

I reference this post at the given url, expanding the discussion to the role of legal education in perpetuating a style of brief-writing.