Mary Trevor

Many of the techniques we will discuss apply to both
written and oral advocacy

We’ll start will concepts applicable to both, then
move on to differences

The concepts we discuss today, overall, will generally
apply regardless of whether the persuasion is
happening at the trial (motion memo, aka trial brief)
or appellate level (appellate brief)

Appellate work involves some additional components
that we will not cover here, but the basic persuasion
techniques remain the same
 Ancient

Philosophy—Aristotle:
Rhetoric—The art of persuasion
http://www.youtube.com/watch?v=x4tTugqBkJU

Pair up: Discuss some time recently when you
were persuaded (or successfully persuaded
someone) to do something, or perhaps were
influenced in your thinking (Super Bowl ads?
Political campaign?). Which rhetorical art(s)
was/were used? Were they used successfully?
 Use
of rhetoric depends in part on Kairos
(setting) and Telos (purpose)
 Our
setting: court
 Our purpose: convince a judge
 Logos—the
substance of what you say
 Ethos—your credibility as the messenger
 Pathos—your appeal to your audience’s
values, needs, and emotions
What
judges say:
“[Y]our arguments must make
logical sense. Your legal and factual
premises must be well founded, and
your reasoning must logically compel
your conclusion.”**
** Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading
Judges xxiii (2008)
 What
judges say:
 “An ever-present factor, . . . , and one
you can influence, is the human
proclivity to be more receptive to
argument from a person who is both
trusted and liked. . . . Trust is lost by
dissembling or conveying false
information.”**
** Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading
Judges xxiii (2008)
What
judges say:
 “[Absent
other controlling factors], all
judges would agree that the decisions
must be driven by (1) fairness to the
litigants and a socially desirable result in
the case at hand, and (2) adoption of a
legal rule that will provide fairness,
socially desirable results, and
predictability in future cases.”**
**Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading
Judges xxi-xxii (2008)
 Goals
 How
do we achieve them? Persuasion tools
 Look to additional fields for the tools:

Communications and psychology

Storytellers

Legal writers

Communication, psychology, and other fields give us
“heuristics”—tools for promoting ethos (credibility) and
generally for being persuasive

As we experience persuasion and influence from childhood
to adulthood, we subconsciously tend to develop positive
responses (some call them “mental shortcuts”) to certain
ways that people present information

Understanding these responses can help us present
information in ways to make its favorable reception more
likely

Remember, judges are people, too! Many of the techniques
used in legal writing are based in part on heuristics.

Primacy and Recency –
People tend to remember best what they
hear/read first, and what they hear/read last
►How does this apply to advocacy?
--Open and close documents,
presentations, and sections within the
document or presentation, with your
strongest points--the ones you want your
audience to remember
--“Sandwich” unhelpful material in the
middle of documents and sections

Availability Bias, Status Quo Bias, & Anchoring
People are more readily persuaded if there is a
familiar point of comparison to support a point, &
people are more comfortable deciding in favor of
the status quo than changing (logos)
►How does this apply to advocacy?
--Use case comparisons (analogies and distinctions)
to support your arguments
--Stress, overall, the consistency of your arguments
with the rule of law, precedent, and policy: it’s
how our legal system works, and it makes the
judge more comfortable about deciding for you
 Extremeness

Aversion –
People are uncomfortable if positions are pushed
too hard: don’t overdo
►How does this apply to advocacy?
--Accept the limits of your case; do not push
arguments more than the facts and the law
support
--Avoid saying that something is “clear” or
“obvious”—you would not be in court if it were
--Remember that judges especially (but not
exclusively) value logos; pathos without proper
support will backfire

Contrast Effects –
Make something appear less problematic by pairing it
(offsetting it) with something favorable
 Make something appear less problematic by
contrasting it with something worse
 ►How does this apply to advocacy?
--Use the “buddy system”—pair a “bad” fact with a
good fact to offset the bad fact
--Sentence structure example: Although/while
[something bad is true], [this “good,” more
important fact is also true].
--Lead off with good points and good facts, follow
with the bad
--Show how the outcome your client wants leads to
less desirable outcomes than yours

 Liking

–
Get your listener/reader to like you (ethos)
►How does this apply to advocacy?
--Be considerate: avoid ad hominem attacks
--Make the judge’s life easier: be organized
and clear, follow the rules, show respect for
the authority of the court
--Follow ethical rules:
http://lprb.mncourts.gov/rules/Pages/MRPC.asp
x

 In
addition to heuristic techniques,
remember that ultimately, you are telling a
story and suggesting the appropriate ending
 Good stories have a message that can be told
in a few words—think fairy tales, Aesop’s
fables:


Message of Hansel & Gretel, Goldilocks?
Message of Super Bowl ads?
►How does this apply to advocacy?
--Know your message (theme); be able to say it in a
few words (Six Word Story) (Bumper sticker)
--Organize according to your message—what do you
need the reader to know right up front?
--Choose terminology consistent with your message.
How do you refer to the parties? What words,
especially verbs, do you use to describe what
people did? Remember that many words as used
in our society have positive or negative
connotations. (“Did not” vs. “fail,” etc.)
--Detail what supports your message, put it at
points of emphasis, summarize aspects that do
not support your message
 Facts
Goldilocks handout
Group together—
How would you tell this story as the prosecutor
on a trespassing & destruction of property
charge?
How would you tell this story if defending her?

Why CREAC?





Promotes primacy and recency—start with your point
and end with your point
Rule of law and Case illustrations support logos—make
you sound authoritative and provide support for what
you are saying
Case comparisons in arguments anchor your points in
the familiar, support maintaining the status quo,
support logos and your ethos as a knowledgeable
professional with support for your argument
Policy and fairness arguments appeal to pathos
Consistent organization techniques promote
perceptions of ethos and liking—makes judge’s job
easier
 Get
to the point and state it directly
 Delete
unnecessary information—if in doubt,
take it out.
 Proofread
 Ethos,
and grammar check carefully
Pathos, and Liking—make the judge’s
life easier and look professional
 Same
 Make
as above, plus:
it even simpler; remember your
listener is absorbing and assessing
information delivered orally—can’t go back
immediately and re-read—setting (kairos)
makes a difference
 Show conviction to promote ethos
 Remember that this is a conversation, not a
presentation
 Overly
dramatic or emotional
presentation
 Ignoring unhelpful facts or authority
 Lack of organization and/or clear
signposts to show organization
 Failing to concede a point that should be
conceded
 Saying a point is clear or obvious when
the opponent has a plausible point to
make
 Lack
of preparation
 Reading
too much
 Guessing
instead of admitting that do not
know the answer
 Going
so fast, or in such a disorganized way,
that judges cannot ask questions
 Not
remembering to breathe!
 Mary
Beth Beazley, A Practical Guide to
Appellate Advocacy (3d ed. 2010)
 Robert B. Cialdini, Influence: Science
and Practice (4th ed. 2001)
 Ross Guberman, Point Made: How to
Write Like the Nation's Top Advocates
(2011)
 Antonin Scalia & Bryan A. Garner,
Making Your Case: The Art of
Persuading Judges 2008)