Practicing lawyers—use the Toolkit for preparing briefs, opinions, letters to counsel, internal memorandums, and other documents.
Research Lawyers—use the Toolkit in helping your lawyer–clients write submissions for court (including trial briefs, appellate briefs, and skeleton arguments.
Students—use the Toolkit for answering problem-based exam questions and moot court questions.
Teachers—get ideas for teaching 'real-world' legal problem-solving
All users—tailor the end document to your particular audience and purpose.
Win More Cases: The Lawyer's Toolkit provides a step-by-step model for solving legal problems persuasively in writing. Many ideas about persuasive writing can apply to work inside and outside the litigation context, including writing letters to opposing counsel and negotiating settlements. But, to keep the Toolkit manageable, the Toolkit assumes you want to persuade a particular kind of audience: a judge or panel of judges (not a jury, an opposing lawyer, or some other kind of audience). Specifically, we have modeled the Toolkit on cases that go to trial or appeal, especially civil cases.44 In this situation, you will typically use the Toolkit to draft a persuasive written argument, such as a submission or a brief.45
If you use Win More Cases to persuade the same broad audience (judges) for which we have modeled the Toolkit, you must still tailor the end document to your specific audience. We can only generalize about the ways to persuade judges in writing. For example, in Step 9, we say logic persuades judges most; in Step 10, we suggest ways to bolster your credibility in the eyes of judges. These generalizations assume you face an audience of busy, objective, intelligent, dedicated, independent, hard-working, highly educated people who will decide cases 'according to law' and who want to do justice between the parties. But judges, as people, have their own individual needs, values, methods, beliefs, backgrounds, preferences, personalities, and other influences:
'Courts … are not filled by demigods. Some members are learned. Some less so. Some are keen and perspicacious. Some have more plodding minds. In short, they are men and lawyers much like the rest of us … If the places were reversed and you sat where they do, think what it is you would want first to know about the case. How and in what order would you want the story told? How would you want the skein unraveled? What would make easier your approach to the true solution? These are questions the advocate must unsparingly put to himself … If you happen to know the mental habits of any particular judge, so much the better. To adapt yourself to his methods of reasoning is not artful, it is simply elementary psychology.'46
Thus, you must individualize your arguments to the particular judge or panel of judges you face. You will want to know more than just the judges' voting records. For example, you will want to know:
'each judge's conscious intellectual process in receiving and probing argument … perhaps more important … the subconscious forces at work—the hidden agendas the judges would vehemently deny, but a perceptive observer would easily recognize … [and] the personal interaction among the judges of the panel—the group psychology.'47
We leave it to you to adapt your arguments to the individual judge or judges you face. But we provide the following leads on researching and adapting an argument to a specific audience.
1. IDENTIFY YOUR AUDIENCE
'As soon as the advocate becomes aware of the potential decision-makers and influential players that need to be persuaded, considerable progress has been made towards solving the client's problem. Once all potentially relevant audiences have been identified, strategies for persuading them begin to emerge.'48
To persuade an audience, you must first identify that audience. In litigation, you can sometimes choose your audience, to an extent. For example, sometimes you can choose the court in which to sue. Before you choose, assess the pros and cons of each potential audience, such as the powers and remedies available to the decision-maker.
If you can, find out which judge or judges the court has assigned to your case. If you face several judges—for example, in an appeal—then identify and target the judge or judges that will carry the numbers.
2. RESEARCH YOUR AUDIENCE
'You must inquire about the acceptability of consequences, and this requires at a minimum that you have thoroughly researched the jurisprudential idiosyncrasies of the members of the court before whom you are appearing. Know the court. Know this court. Know the court that will be reading your briefs.'49
Once you have identified the audience, research that audience as much as you can. For example, at an institutional level, consider researching the court's—
At the individual judge's level, research matters like:
Find this information by brainstorming all 5 spheres of information outlined in Step 5 below. For example, look at the judge's—
For further guidance on identifying and researching your audience, read:
James L Robertson, 'Reality on Appeal' in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 179
Thomas Michael McDonnell, 'Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems' (1998) 67 UMKC Law Review 285
Ruggero J Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2nd ed, 2003) 206–209
3. ADAPT YOUR ARGUMENT TO THE AUDIENCE
Most sources give only vague advice on what 'adapt your argument to the audience' means. For example, authors do not always specify whether their advice applies to the style, structure, substance, or some other aspect of your message.51
Nor does every author specify the aspect of the audience to which you should adapt your argument, such as whether you should choose words according to the audience's personality or whether you should adapt the substance of your argument to more fundamental influences. We have provided below some possible meanings of 'adapt your argument to the audience'.
(a) Adapt the substance of your argument to the judge's jurisprudential approach
'Every experienced appellate advocate will know that different judges have different interests and distinct approaches to those three determinants of many an appeal: legal authority, legal principle and legal policy.'52
Different judges find certain kinds of argument more persuasive than others. For example, 'judicial policy' or the 'right result' attracts some judges, but precedent alone compels other judges. So when you choose among the workbench of legal techniques we provide below in Step 9, bear in mind the preferred jurisprudential approach of the judges before whom you appear, and consider adjusting your argument with that in mind.53
(b) Adapt the structure of your argument to the judges' level of support
'A highly motivated athlete in training is a very different audience to a judicial officer who has heard it all before, far too many times, and is counting the days until they can escape the courtroom and the burden of reserved judgments. Related to audience motivation is their comfort with present beliefs which your maladroit advocacy will upset. We don't like being upset.'54
Some authors say you should adjust the structure and content of your message according to the audience's existing level of support for your views. For example, if you face a hostile audience, then you might emphasize the areas on which you agree before dealing with areas of conflict. If you face an uninterested audience, then you might start with an attention-grabbing story, headline, or heart-stopping fact.55 Lawyers often face a mixed audience, which needs yet another approach. Harry Mills gives the clearest, most practical advice we have found on tailoring your message to mixed, hostile, neutral, supportive, uninterested, and uninformed audiences,56 though not specifically legal audiences.
(c) Adapt the style of your argument to the judge's personality
'Membership of the same crowd, even if it's temporary, induces a sense of belonging which brings trust and acceptance. Shared experiences and demonstrated understanding suggest a common cause. So too does the deliberate choice of language which meets the varying needs of the members of the audience. I "see", "picture", "describe", "map out" or "notice", for those with a dominant visual sense. I "hear", "listen", "tap" or "strike", for those with a strong auditory sense. For others, I "feel", "reflect", "consider", "touch" or "empathise". We are more trusting of those "we know" than those who are outsiders.'57
Some persuasion theorists suggest that to persuade someone, you must know their personality and match the style of your message to the right personality type:58 '"Do unto others as you would have them do unto you." In other words, always speak the other person's language.'59
Many of these theorists use the 'Myers Briggs Type Indicator' (MBTI),60 which derives from the work of psychologist Carl Jung.61 Again, Harry Mills gives the clearest, most practical advice we have found on tailoring your message to your audience's personality type,62 though Mills deals with audiences generally rather than courts or judges specifically.
Table 1: Adapt your message to the specific audience
44 Even though most cases do not get to court.
45 By 'submission' or 'brief', we mean the document that a lawyer presents to court arguing why their client should win. The plaintiff or appellant serves their brief on the other side before oral argument, and the defendant or respondent then serves their answering brief on the plaintiff or appellate. Sometimes, the plaintiff or appellant serves a reply brief (Delmar Karlen, Appellate Courts in the United States and England (1963) 149). Australians say 'submissions' and Americans say 'briefs' (more specifically, 'trial briefs' and 'appellate briefs'). In England and Wales, 'briefs' refer to the written instructions from a solicitor to a barrister. So, rather than 'briefs', English lawyers refer to 'skeleton arguments', 'outline submissions', and 'written submissions'. These terms describe the same thing in all UK courts other than the House of Lords. The House of Lords uses a specific document called the 'appellant's case' or the 'respondent's case', which performs the same function as a skeleton argument in the lower courts. But the House of Lords version tends to have more detail than skeleton arguments in the lower courts and they must cross-reference the various bundles before the House.
46 John W Davis, quoted in Nicholas M Cripe, 'Effective Appellate Argument' (1984) 70 ABA Journal 56, 57.
47 James L Robertson, 'Reality on Appeal' in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 179, 179.
48 Thomas Michael McDonnell, 'Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems' (1998) 67 UMKC Law Review 285, 296.
49 Ruggero J Aldisert, Winning on Appeal: Better Briefs and Oral Argument(2nd ed, 2003) 206 (emphasis original).
50 See also Steven D Stark, Writing to Win: The Legal Writer (1999) 139–41.
51 But compare Maurice Byers, 'From the Other Side of the Bar Table: An Advocate's View of the Judiciary' (1987) 10 University of New South Wales Law Journal 179, 179 ('I have known two judges … able to take hold of an argument only if expressed compatibly to their mode of thinking. I am speaking not of a stylistic preference but of a capacity to understand, and each had a powerful mind').
52 Michael Kirby, 'Ten Rules of Appellate Advocacy' (1995) 64 Victorian Bar News 47, 49; (1995) 69 Australian Law Journal 964, 967.
53 William Huhn, The Five Types of Legal Argument (2002) 192. See generally Thomas Michael McDonnell, 'Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems' (1998) 67 UMKC Law Review 285.
54 Hugh Selby, 'Arguing for Other Persuasions' (3 August 2007) Lawyers' Weekly Online (www.lawyersweekly.com.au/articles/Arguing-for-other-persuasions_z69915.htm) (accessed 20 October 2007).
55 Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999).
56 Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999).
57 Hugh Selby, 'Arguing for Other Persuasions' (3 August 2007) Lawyers' Weekly Online (www.lawyersweekly.com.au/articles/Arguing-for-other-persuasions_z69915.htm) (accessed 20 October 2007). See also Hugh Selby, Graeme Blank, and Mark Nolan, 'Special Issue: Persuasion Part I' (2007) 9(10) ADR Bulletin 181, 181–2.
58 See, for example, Peter Thompson, Persuading Aristotle: The Timeless Art of Persuasion in Business, Negotiation, and the Media (1999) 63.
59 Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) quoting Matthew 7:12.
60 See, for example, Isabel Briggs Myers et al, MBTI Manual (A Guide to the Development and Use of the Myer Briggs Type Indicator) (3rd ed, 1998).
61 See, for example, Carl Jung, Psychological Types (1921, English ed 1923), reprinted in Collected Works of CG Jung, Vol 6 (1976).
62 Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999).