By Step 8, you should have identified the legally relevant facts, identified the relevant law, and applied the law to the facts to identify the issues on which the legal sources provide no clear answer. You must now resolve these issues and persuade the judge that your view of the inconclusive sources of law represents the 'right' view. In Step 8, you will use the first classical persuasion technique—persuading through emotion.

Some people see emotion as inappropriate for lawyers; but, if you keep the emotion restrained, an appeal to emotion can persuade.221 Emotion can persuade because judges 'want to do substantial justice and … they are sensitive to the "equities"'.222 Judges 'are not automatons, and judges do not cease to be human beings however much they may—as they properly should—steel themselves against emotional bias'.223

You can persuade through emotion in 2 ways. First, you can persuade through 'emotional substance'.224 Second, you can persuade through 'medium mood control'.225 Step 10 will deal with 'medium mood control'; this Step 8 discusses emotional substance.

'Emotional substance' arguments typically involve arguments that focus on the facts of a case.226 Such arguments involve explaining and emphasizing facts that will evoke emotions such as sympathy for a party's plight or anger toward an opposing party's behavior.227

In legal writing, you usually hint at emotion arguments rather than say them expressly.228 The most common type of implied emotional argument occurs in a Statement of Facts:

'The Statement of Facts provides an opportunity to make an implied emotional argument through the strategic inclusion, organization, and phrasing of certain facts. An effective Statement of Facts contains implied emotional substance arguments by including with the legally relevant facts helpful emotional and background facts and by organizing and phrasing the facts in a way that evokes the desired emotion in the reader.'229

Consequently, you should present a Statement of Facts in such a way that 'the court will want to decide the case in favor of the advocate after reading just that portion of his brief'.230 The most powerful way to persuade through emotional substance involves telling a story:231

'On one level, a lawsuit is simply a clash of competing stories. If you tell your story better than the lawyer for the other side, you won't always win, but you will have a far better chance of prevailing.'232

Scholars from diverse fields have written much about storytelling theory.233 A story has several parts, including plot, theme, character, and point-of-view. These parts, in turn, have characteristic pieces. For example, a plot often follows this structure: 'Order, Disorder/Chaos, Re-Order'234 or, put another way, 'Status quo, Complication, Answer',235 or, put yet another way, 'Steady state, Trouble, Restoration/Transformation'.236 This structure persuades because it makes a return to the steady-state or a new (transformed) steady-state feel like the right ending.237

Persuasive advocacy can follow the same structure. For example, the lawyers' technique of 'name, blame, and claim' follows a storytelling structure.238 The lawyer specifies the norm or standard that a party expected the accused party to follow ('name'), specifies the breach of those expectations by the accused party ('blame'), and specifies the remedy needed to repair the breach ('claim').239

Likewise, in a Statement of Facts, you might first set the 'order' (or 'status quo' or 'steady state') by telling the judge about the litigant so that the judge gets to know their character; then tell the judge the disruption that happened (the 'chaos' or 'complication' or 'trouble'); and finally propose the resolution ('re-order' or 'answer' or 'restoration/transformation'). We have explained these steps further below.

 

221 Helene S Shapo et al, Writing and Analysis in the Law (4th ed, 1999) 278 quoted in Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 95.

222 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 45. See also Ruth Anne Robbins and BJ Foley, 'Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections' (2001) 32(2) Rutgers Law Journal 459, 462 ('most judges are moved more by fairness, common sense, and compassion to help a person who has been wronged, than by clever legal analysis. The facts section, not the argument section, appeals to judges on this level and, thus, exerts a profound influence on how they decide cases'; Karl Llewellyn, The Common Law Tradition (1960) 238 ('The real and vital central job is to satisfy the court that sense and decency and justice require (a) the rule which you contend for in this type of situation; and (b) the result that you contend for, as between these parties … If that is done, the technically sound case on the law then gets rid of all further difficulty: it shows the court that its duty to the Law not only does not conflict with its duty to Justice but urges to decision along the exact same line').

223 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 45.

224 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 95–7.

225 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 97–8. 'Medium mood control' in legal writing focuses on how your writing style, as opposed to the substance of your arguments, affects the reader's emotions.

226 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 96.

227 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 96.

228 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 97.

229 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 97.

230 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 45.

231 See generally Ruth Anne Robbins and BJ Foley, 'Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections' (2001) 32(2) Rutgers Law Journal 459. See also Charles J Ten Brink, 'A Jurisprudential Approach To Teaching Legal Research' (2005) 39 New England Law Review 307, 310 ('the audience must be given a coherent and compelling story if you wish to persuade that audience to do what you want.'); Patricia M Wald, '19 Tips from 19 Years on the Appellate Bench' (1999) 1 Journal of Appellate Practice and Process 7, 11 ('Make the facts tell a story. The facts give the fix; spend time amassing them in a compelling way for your side … well done, the facts should make your case by themselves.'); James W McElhaney, 'Balanced Persuasion' (2002) 88(3) ABA Journal 60, 61; Steven D Stark, Writing to Win: The Legal Writer (1999) Ch 5.

232 Steven D Stark, Writing to Win: The Legal Writer (1999) 80.

233 Including, recently, law. For a start, see Philip N Meyer, 'Vignettes from a Narrative Primer' (2006) 12 Journal of the Legal Writing Institute 229; Philip N Meyer, 'Will You Please Be Quiet, Please?: Lawyers Listening to the Call of Stories' (1994) 18 Vermont Law Review 567; Anthony Amsterdam and Jerome Bruner, Minding the Law (2002) 110–164; Jerome Bruner, Making Stories: Law, Literature, Life (2002); Ty Apler et al, 'Stories Told and Untold: Lawyering Theory Analyses of the First Rodney King Assault Trial' (2005) 12 Clinical Law Review 1; 'Legal Storytelling', special issue, 87(8) Michigan Law Review.

234 Ruth Anne Robbins and BJ Foley, 'Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections' (2001) 32(2) Rutgers Law Journal 459, 476.

235 Peter Thompson, Persuading Aristotle: The Timeless Art of Persuasion in Business, Negotiation, and the Media (1999) 26–7.

236 Anthony Amsterdam and Jerome Bruner, Minding the Law (2002) 113–4.

237 Philip N Meyer, 'Vignettes from a Narrative Primer' (2006) 12 Journal of the Legal Writing Institute 229, 236, 257.

238 Jerome Bruner, Making Stories: Law, Literature, Life (2002) 117, fn 2.

239 Jerome Bruner, Making Stories: Law, Literature, Life (2002) 117, fn 2.

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