March 6, 2014
In the previous installments in this series, I discussed the subtle ways that you can advocate for your client through proposed orders and affidavits. But your deployment of subtle advocacy isn’t necessarily limited to documents typically viewed as being non-adversarial in nature.
Rather, you can use persuasive advocacy in your actual legal arguments without it appearing as though you are making an explicit argument. Naturally, your legal arguments, as represented by your legal briefs and memorandums, should, in fact, contain clear, unequivocal arguments – and that’s certainly “persuasive advocacy.”
But the kind of advocacy I’m referring to – that which is not quite so clear – comes with how you frame your arguments.
There is a wide range of options available in this regard, so how does one decide which argument framework is best for your particular case?
The short answer is, “It depends on your judge.”
That is to say, judges are people, and different people have different motivations and beliefs. Likewise, different judges will often approach cases and arguments with different motivations and beliefs.
Perhaps your judge is primarily concerned with following the law. In this scenario, your arguments should be clearly based in statutory and case law (as would be demonstrated by increased citations to such sources). There’s more to this argument framework, however.
Often times, the judge with a heightened focus on dutifully following the law also reads the law narrowly. In other words, this type of judge does not want to take any course of action that could cause any shifts in the relevant area of law (either contracting it or expanding it). Thus, when writing your argument, you will make the greatest impact on this judge by emphasizing that your position is that one most in line with prior rulings and statutes – and that your opponent is asking the judge to expand or limit the body of law in question. Normally, I would warn against going too far in attacking your opponent’s argument by claiming that a ruling in his or her favor will “open the floodgates” to litigation (since I personally find such scare tactics less than scrupulous), but they actually work quite well on some of these judges, so you may use them if you find that they suit your argument.
Not far off from this judicial attitude is the next: the judge who may have policy underpinnings to her decision. This may have varying effects on the outcome of your case based on how contentious the area of law in which the case is based, but judges with an identifiable policy viewpoint will almost always allow that viewpoint to affect her rulings.
Your job here is to first identify any such opinions (e.g. how the law should be read, what the law should or should not be, etc), and tailor your arguments to appeal to that opinion. Again, though, subtlety is key. Don’t use language that explicitly claims that your position is most in line with said viewpoint (e.g. “this result would be most favorable to a narrow reading of Case X.”)
Instead, you have to tread carefully around such a conclusion, carefully guiding the judge into reaching it on her own. This can often be accomplished by subtle assertions made in the middle of larger arguments (such that the smaller claims are camouflaged) that imply, but don’t outright declare, that your position or argument has characteristics distinctive to the judge’s favored viewpoint.
Essentially, you should frame your argument as though it were written by someone with the same viewpoint as the judge, not as though it is trying to convince the reader that the argument is favorable to someone of that viewpoint.
Finally, we come to the judge whose decisions are based less on law or policy as they are on reaching a particular end. In other words, this judge may reach the outcome that she believes to be the most just, regardless of what the law says.
As such, your legal arguments are not going to be the best way to influence this judge; instead, how you present the facts will be far more important. To this end and to the greatest extent possible, you must state the facts of your case in such a way that can create sympathy for your client such that an adverse ruling would harm the interests of justice. Your legal arguments should supplement your facts so that there can be at least a seemingly plausible legal basis for the result that you seek.
As I stated earlier, though, the trick is identifying which of these approaches will be effective on your judge. And admittedly, it may be impossible to tell the judge’s viewpoint until a ruling is handed down (which is too late in most circumstances).
What can you do, then?
Whenever possible, integrate all three of these advocacy tactics into your legal writing: emphasize how your position conforms to a strict reading of the law; play up any generally favorable policy objectives that your position reaches; and leverage your presentation of the facts to create sympathy for your client.
Ideally, you could know which of the three to focus on for each judge before whom you appear so that you could place appropriate emphasis on the appropriate style.
But if you integrate all three tactics from the start, you may be able to influence the judge in ways that you wouldn’t have previously considered.