New Second Circuit briefing rules effective 5/31/19
Thinking, Fast and Slow

Kairos—or what briefwriters can learn from Dr. John

I been in the right place, but it must have been the wrong time.
Dr. John

Here are three principles of briefwriting that I try to follow:

  1. Every part of a brief should contribute to persuasiveness.
  2. Not every part of a brief should be argumentative. Argument should be confined to, well, the argument (and summary of the argument).
  3. Argument in the wrong place (for example, in the jurisdictional statement) detracts from persuasiveness.

Probably everyone would agree with item # 1. Some people may need convincing on items # 2 and #3, so I’ll give it a try.

Way back when, Aristotle described four modes for creating persuasive arguments: ethos, logos, pathos, and kairos. Ethos refers to the credibility and trustworthiness of the one giving the argument. Logos refers to logic, to the syllogistic thinking we all learned in law school. Pathos refers to establishing common ground with listener or reader. See Linda L. Berger and Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science 5 (2018). As the title of this post suggests, I want to talk about kairos and how that figures into briefwriting.

Kairos refers to the appropriateness of timing and setting for the argument. Id. To paraphrase Dr. John, it means not only saying the right thing, but saying it at the right time. According to the editor of this web page, “Kairos ... is based on the thought that speech must happen at a certain time in order for it to be most effective. If rhetoric is to be meaningful and successful, it must be presented at the right moment, or else it will not have the same impact on ... the audience.”*

I’ll take it a step further and propose this: In a brief, argument in the wrong place or at the wrong time detracts from persuasiveness. Why is that? Because when the reader is reading, say, the jurisdictional statement, she is not receptive to argument; she just wants to know whether the court has jurisdiction over the appeal. So if she hits a patch of argumentative language in the jurisdictional statement, she filters that out or skims past it. As a briefwriter, I don’t want my reader to get in the habit of filtering or skimming. I want to encourage the reader to read every word; I want to get her in the habit of nodding in agreement or, at least, thinking that every word is worth reading.

Every part of the brief can be persuasive if it does exactly what it’s supposed to do, and does so without inflicting pain or boredom on the reader. Doing this builds ethos by establishing the briefwriter’s knowledge, credibililty, and trustworthiness. It also builds pathos by showing that the briefwriter understands and is trying to meet the reader’s needs. Putting argument where it doesn’t belong has the opposite effect.

In the coming days, I hope to write a series of posts on how to make the non-argumentative parts of the brief persuasive. Well, maybe not the certificate of service, but everything else.

*Yes, I know it’s just Wikipedia. But the statement makes sense, and I don’t have a better source handy at the moment: my copy of Aristotle’s Rhetoric is at home.


Feed You can follow this conversation by subscribing to the comment feed for this post.


"I hereby certify the above and foregoing pleading requesting relief that is obviously due the plaintiff was served on counsel for the party who is clearly wrong by fax..." Easy.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.


Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name and email address are required. Email address will not be displayed with the comment.)