Today I’m giving a presentation at the Legal Writing Institute’s 14th Biennial Conference. My topic is techniques for emphasizing favorable material and (sometimes more important) de-emphasizing unfavorable material. For attendees and other interested persons, here are copies of the one-page handout and the article that the presentation is based on.
If you happen to be attending the Legal Writing Institute's 14th Biennial Conference, think about catching my presentation on Wednesday, June 30, from 2:30 to 3:15 p.m. It will be a practitioner-oriented session on how to emphasize good material and de-emphasize bad material.
Prof. Kathryn Stanchi has written an interesting article on priming, the process of influencing a person’s response to later information by exposure to prior information. She explains what priming is and how briefwriters can use it to influence the reader’s emotional reaction to a story or interpretation of facts and law. If that’s something you’d like to know how to do, click here to read the abstract and download the article.
Stanchi, Kathryn, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader (May 10, 2010). Oregon Law Review, Forthcoming; Temple University Legal Studies Research Paper No. 2010-7. Available at SSRN: http://ssrn.com/abstract=1604150
I’ve posted before about The Economist Style Guide, but that was more than four years ago, so a refresher won’t hurt. And since Johnson recently reminded me of the ESG’s existence and usefulness, now is as good a time as any for a refresher. So if you haven’t done so by now, check it out. And if you like what you see, bookmark it for future reference.
Peter Jeff has an interesting item at Six Minutes: 8 speech-writing lessons you can learn from songwriters. I’m not saying that your next brief should read like Bob Dylan’s lyrics. But if some of these techniques are trying to happen in whatever you’re writing, consider letting them happen. (Hat tip to LADC.)
At Legal Writing Prof Blog, on-line pal and scholarship dude James Levy suggests a correlation between a law student’s grade in legal research & writing and overall law-school success. In response, I offer two personal facts:
- My grade in legal research & writing was C+.
- At graduation, I ranked 5th in my class of just under 200. That C+ tied for the lowest grade I received in any law-school course.
Some puffed-up writers use long words, techie talk, trendy terms, and convoluted sentences to cover up or deceive or sound important or go along with the crowd. Most people who inflate their writing, though, are simply insecure, often for no good reason. They don’t feel their ideas are strong enough, and they prop them up with elaborate language.
Start with Peter Friedman, who links to Randall Ryder, who links to Seth Godin. Back in the day, we called that surfing.
A brief in a U.S. Fifth Circuit appeal must include a statement regarding oral argument. The appellant’s brief must include either a waiver of oral argument or a request for oral argument with reasons supporting the request. The appellee’s brief must include a statement why oral argument is or is not needed.1
I find these statements challenging to write, especially from the appellant’s side. The challenge is to make the statement persuasive without making it overtly argumentative. By “persuasive,” I mean not only persuading the court to grant or dispense with oral argument, but also beginning the task of persuading the court to decide the appeal in my client’s favor—and doing that without the kind of argument that would be inappropriate in this part of the brief.
Today I came across an idea for doing that when representing an appellant and requesting oral argument. The idea comes from the Federal Court of Appeals Manual by David G. Knibb (4th ed.), chapter 32. In it, Knibb offers this form for a motion to restore oral argument after the appellate panel has disallowed oral argument:
Plaintiff-Appellant moves pursuant to F.R.A.P. Rule 34(a) to restore this case to the argument calendar. This case meets the standards in Rule 34(a)(2) for oral argument, in that (a) this appeal is not frivolous, (b) the dispositive issues raised in this appeal have not been recently and authoritatively decided, and (c) as described in the accompanying memorandum, the decisional process would be significantly aided by oral argument.2
Actually Fed. R. App. P. 34(a)(2) lists criteria for disallowing oral argument, but the criteria can be applied in reverse to support allowance of oral argument.
On doing further research, I learned that the federal appellate courts expect lawyers to refer to Rule 34(a)(2) in writing a statement regarding oral argument. For example, Seventh Circuit Rule 34(f) allows “a short statement explaining why oral argument is (or is not) appropriate under the criteria of Fed. R. App. P. 34(a).” And Fifth Circuit Rule 28.2.3 (requiring the statement regarding oral argument) includes a cross-reference to Fed. R. App. P. 34.
So when writing a brief’s statement regarding oral argument, use Rule 34(a)(2) as a framework, offering just a few sentences elaborating on each of the three criteria. Doing that will give the court a taste of the argument to come. Doing that on the first criterion (the appeal is or is not frivolous) will begin the task of persuading the court to rule in your client’s favor.
1 5th Cir. R. 28.2.3.
2 David G. Knibb, Federal Court of Appeals Manual 608 (4th ed., West Group 2000).
If you live around one of the cities listed below, then you may want to sign up for Bryan Garner’s excellent CLE seminar “The Winning Brief.” I’ve attended this seminar twice: once a long time ago, when Bryan used an overhead projector to give his presentation; and again more recently, when he used PowerPoint with embedded videos. If you’ve never taken this seminar before, or if you last took it in the overhead-projector era, I promise you that you’ll get your money’s worth. For more information and for links to on-line registration, click here.
• Houston: June 8
• Denver: June 18
• Chicago: June 22
• Minneapolis: June 23
• Atlanta: June 28
• Miami: June 29
• Phoenix: July 6
• Los Angeles: July 8
• San Francisco: July 9
• New York: July 12
• Washington, D.C.: July 13
• Boston: July 14
• Dallas: July 20