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Snap judgments

The ABA Journal reports on a psychological study suggesting that judges often base their decisions on intuition rather than deliberate analysis. For lawyers, this phenomenon is either a problem or an opportunity. For writing tips on making it the latter, by influencing those judicial snap judgments to go your way, read John Bursch’s excellent article, Appealing to Judicial Snap Judgments. (Note: if you read the Winter 2005 issue of Certworthy, you were on to this problem and John’s tips for dealing with it three years ago.)



This morning’s post about the Conan brief prompted me to remember Hegel’s theory of dialectic, something I learned in seminary philosophy courses back in the 1970s. Professor Eric Steinhart sums up the process of hegelian dialectic this way:

“Hegel stresses the paradoxical nature of consciousness; he knows that the mind wants to know the whole truth, but that it cannot think without drawing a distinction. Unfortunately, every distinction has two terms, every argument has a counter-argument, and consciousness can only focus on one of these at a time. So it fixes first on the one, then under pressure fixes second on the other, until it finally comes to rest on the distinction itself. Hegel refers to this process of alternation and rest as dialectic. Dialectical motion has three stages: THESIS, ANTITHESIS, and SYNTHESIS.”

Analyzing the arguments about emotion in a legal brief in hegelian terms, we might see:

Thesis: MoneyLawyer’s argument.
Antithesis: Scott Greenfield’s counterpoint.
Synthesis: Bryan Garner’s recommendations for evoking an emotional response.

Notice the persuasive power of the dialectic. When three viewpoints are presented in dialectical fashion, the synthesis usually appears to be the most sensible of the three. In The Conan Brief, if you read all three positions, you probably concluded that Garner’s is the best, and not just because he’s Garner.

Appellate judges sometimes use dialectical reasoning: examining each of two opposite positions, identifying the advantages and disadvantages of each, and fashioning a new rule of law designed to retain the advantages while avoiding the disadvantages. But lawyers rarely use such arguments. Indeed, dialectical reasoning is probably not apt for most legal arguments. But if you’re arguing the rare case that will make law, you might consider a dialectical argument, to present your proposed rule of law as the most reasonable.

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).

Two lessons

Alaska Employment Law calls our attention to a recent minute entry teaching two lessons about proper record citation:

  1. If the court has a local rule for citing something, follow the rule.
  2. If you don’t follow # 1 above, the court may not consider the material lacking a proper citation.

On one hand, I feel for the lawyer who got slapped with this minute entry. On the other hand, if the court is going to have a rule at all, then the court must also do something to enforce the rule. In this instance, the court made the lawyer re-do the submission using proper citations.

How to write for the client.

The good folks at What About Clients? care about good legal writing. By eliminating the legalese and communicating like a human being, a lawyer can produce client-centered writing: something primarily for the client; something the client can readily understand. If you agree, then you’ll enjoy today’s post, in which Dan Hull riffs on an unusually pompous and putrid example of bad contract drafting. I especially like Dan’s closer, in which he says that writing in plain English “would help diminish the image of the self-important ‘ I’m-special ’ lawyer rocking back and forth in his chair and talking to himself like a mental patient.”

Impurity is sometimes good.

Most connoisseurs of good legal writing know that two of its finest artisans are Seventh Circuit Judges Frank Easterbrook and Richard Posner. What is it about their writing that we like so much? It’s their impure writing, which Posner himself describes as “impure.” In this article, Brian J. Paul analyzes what Easterbrook and Posner do that sets them apart. (Hat tip to Wash Park Prophet.)

When passive voice should be used

Generally you should prefer the active voice to passive voice. A sentence in active voice is more direct and less verbose than one expressing the same thought in passive voice.

But this is a general rule, not an absolute rule. Sometimes the passive voice enables you to put the most important words where they will be most noticed: the end of the sentence or its beginning. For instance, Ed Good and Bryan Garner advise writers to use the passive voice when necessary to put the punch word at the end of the sentence.1 And George Gopen advocates using the passive voice when necessary to put the right information in the topic position, toward the front of the sentence.2

So it’s no surprise that some web-design experts have figured out that passive voice can come in handy to front-load important keywords in headings and lead sentences. The idea is simple: When writing for the Web, you must capture the reader’s attention within the first two words. Sometimes the only way to front-load the sentence with the two most interesting words is to use the passive voice.3

Fortunately for us legal writers, we usually have a little more than two words to grab the reader’s attention. Bryan Garner figures that we have 90 seconds to get that done.4 Still, the more quickly you grab the reader’s attention, the better you’re doing your job. And sometimes the quickest way to grab the reader’s attention — the way to put the high-impact words up front — is to use the passive voice.

1 C. Edward Good, Mightier Than the Sword 126–27 (1989); Bryan A. Garner, The Winning Brief 189 (2d ed. 2003).
2 George D. Gopen, The Sense of Structure 67 (2004).
3 Jakob Nielsen, Passive Voice is Redeemed for the Web (Oct. 22, 2007), viewed Feb. 6, 2008. Hat-tip trail: Michel Fortin via Brad Schorr.
4 Bryan A. Garner, The Winning Brief 55 (2d ed. 2003).