How to Write So the Judge Sees Character and Credibility
How to Write So the Judge Sees Character and Credibility
By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.
Legal historian Michael Frost teaches that “[u]nder classical theory, effective legal arguments depend almost as much on the advocate’s character and credibility, or ethos, as they do on logical integrity (logos) or emotional content (pathos).”1 As readers, we know that persuasive legal writing communicates the writer’s character and credibility or, too often, deceptive tricks and incivility. What are the writing tools that evince the positive virtues and avoid the fatal flaws?
Positive virtues. Judges rely on lawyers for the facts and law needed to make the right call, to find the facts and follow the binding statute or precedent. Stating the facts accurately sends the message that you are a reliable advocate. The court looks for reliability knowing that, since the facts are marshaled competitively, the advocates will present two or more somewhat different factual accounts. Together, these accounts will describe the good, the bad, and the ugly. Advocates who fairly state all the relevant facts register their reliability. In contrast, lawyers who distort the bad and the ugly, who put lipstick on the pig, lose credibility. Indeed, lawyers who omit relevant facts risk ethical violations.2 Thus, writing a reliable statement of facts is the first virtue.
Concede minor factual differences that don’t matter in the long run. An advocate gains credibility by frankly acknowledging such facts. Michael R. Smith, in his excellent book on advanced legal writing, quotes a Florida appellate opinion: “Good lawyers do not waste time in petty quarrels over tertiary details, so long as the ultimate facts are accurately stated.”3 When the client’s position will be unaffected, take the high ground.
But if the facts do matter and they are damaging to the client’s position, then confront them. Rather than allow the opponent to bring them up in shameful detail, take the initiative. Put adverse facts in context; present them in the best light. Again, writing with candor wins the court’s confidence. Show the court that you are a trustworthy source of the facts.
Presenting the law accurately is the other major virtue. When the argument is supported by case precedent, provide the court with the key facts. Avoid lengthy quotes, but embed the summary with phrases and short passages that tell the heart of the matter. Take great care in stating the holding, as distinguished from dicta. And always give the pinpoint page cite. Time-pressed judges and their clerks doubt the advocate’s credibility when an incomplete citation essentially tells them, “You find the holding. I’m too busy.”
As with facing bad facts, confronting adverse authority also signals credibility. After all, the judge is a former lawyer, a trained skeptic, who knows there must be a counterargument and, most likely, a counterprecedent. The judicial reader wants the full picture, not some half-completed mosaic waiting for opposing counsel to fill in. Cite and confront the adverse precedent. Indeed, if the adverse precedent is controlling in the jurisdiction, the rules of ethics mandate citation.4
Fatal flaws. Failing to exercise the positive virtues in statements of law and fact are often fatal to the client’s case. As Professor Linda Holdeman Edwards warns, “Few things make a judge angrier than feeling misled by a lawyer.”5 Other failures that risk judicial ire include a histrionic tone and personal attacks on the opposing party or, worse, on opposing counsel.
Forceful, confident language communicates professional commitment and zeal. But advocates turn judges off when they cross the line into a no man’s land of Rambo invective. Judges hate to have their time wasted by verbal cheap shots and highly personal complaints about the opposing side. Professor Michael Smith wisely recommends, “[F]ocus on the opposing party’s behavior, not on the opposing party....[E]xpressions of hostility toward an opposing party [or opposing counsel] can damage an advocate’s credibility and bring his or her motivation into question.”6
In addition, avoid the lesser flaws, the minor irritants. Humor and sarcasm undercut professionalism and damage credibility. Although U.S. Supreme Court Justice Antonin Scalia may indulge in far-fetched exaggeration and a mocking tone,7 advocates have no such privilege. Attempts at humor usually fall flat, or worse. Sarcasm projects ill-will and essentially amounts to a personal attack on the opposition. Neither tactic persuades; both can undermine credibility.
Finally, use a final edit to weed out minor distractions like slang, jargon, or contractions. These informal words convey a breezy attitude toward the case or the court. And watch those last words. Never tell the court what it “must” or “cannot” do. Instead, simply assert that the court should not hesitate to grant the relief your client seeks.
Respectfully submitted, Scott Wood
1 Michael H. Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage, 67 (Ashgate 2005).
2 Cal. Rules of Prof’l Conduct R. 5-200(B) “[Lawyers shall not] seek to mislead the judge by [a] false statement of fact...” and R. 5-220 “[Lawyers shall not] suppress any evidence that the [lawyer or client] has a legal obligation to reveal....” Accord Bus. & Prof. Code §§6068(d), 6128(a).
3 Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing 113 (Aspen Law & Business 2002) (quoting Barnes v. State, 743 So.2d 1105, 1112-13 (Fla. 4th Dist. Ct. App. 1999)).
4 Cal. Rules of Prof’l Conduct R. 5-200; see also ABA Model Rules of Prof’l Conduct R. 3.3(a)(3).
5 Linda Holdeman Edwards, Legal Writing: Process, Analysis, and Organization 338-9 (2nd ed. 1999).
6 Smith, supra note 3, at 125.
7 Michael H. Frost, “Justice Scalia’s Rhetoric of Dissent: A Greco-Roman Analysis of Scalia’s Advocacy in the VMI Case,” 91 Kentucky L. Rev. 167 (2002).
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