Introduction to Introduction to PersuasionPersuasion

Developing a Theory of the Developing a Theory of the CaseCase

© © Prof. Mathis RutledgeProf. Mathis Rutledge

PersuasionPersuasion

Learned skill – we all haveLearned skill – we all have

Movie appeal:Movie appeal: Fairness – we saw your choice last Fairness – we saw your choice last

timetime Self-interest – Halle Berry’s in itSelf-interest – Halle Berry’s in it Desire to please you – I really want Desire to please you – I really want

to see itto see it Bargain – you choose next timeBargain – you choose next time

First thingFirst thing

Evaluate the case – what is your Evaluate the case – what is your first impression?first impression?

Will help develop a theoryWill help develop a theory

Switching from Objective to Switching from Objective to PersuasivePersuasive

First, stay objectiveFirst, stay objective Each side will have a decent Each side will have a decent

argument, know them bothargument, know them both Look at the law – objectivelyLook at the law – objectively

Find the FactorsFind the Factors

Review precedentReview precedent What factors did the court rely on to What factors did the court rely on to

determine parties should prevaildetermine parties should prevail Was it related to policy, facts or Was it related to policy, facts or

procedureprocedure

Confront the hard issuesConfront the hard issues

What issues will make a differenceWhat issues will make a difference What are the client’s persuasive What are the client’s persuasive

points for the issuepoints for the issue What are the client’s weakest What are the client’s weakest

pointspoints What are the strongest reasons What are the strongest reasons

for the client to win/opposing for the client to win/opposing partyparty

Theory of the CaseTheory of the Case

Your storyYour story Heart of advocacyHeart of advocacy A lensA lens

City of Birmingham caseCity of Birmingham case

Legal Theory – 2 partsLegal Theory – 2 parts

Legal frameworkLegal framework Factual frameworkFactual framework

Generally 2 types of Generally 2 types of argumentsarguments

The facts come within a favorable The facts come within a favorable rule of lawrule of law

A new law (or interpretation of A new law (or interpretation of the law) is needed for public the law) is needed for public policy reasonspolicy reasons

Emphasize facts that favor your Emphasize facts that favor your clientclient

Developing a TheoryDeveloping a Theory

Must first knowMust first know

- the law &- the law &

- the facts- the facts

“”“”

Lawyer like a salesmanLawyer like a salesman

You must believeYou must believe Straight-face testStraight-face test

How to Develop a TheoryHow to Develop a Theory

Think outside the boxThink outside the box Study the evidence closelyStudy the evidence closely Be willing to modify the theoryBe willing to modify the theory

How to Develop a TheoryHow to Develop a Theory

Don’t forget your client – listenDon’t forget your client – listen Interact with your clientInteract with your client

Using the TheoryUsing the Theory

It should permeate the caseIt should permeate the case Orally and in writingOrally and in writing

It should explain why your client It should explain why your client should win & why your opponent should win & why your opponent is taking its positionis taking its position

Major Tool of Persuasion Major Tool of Persuasion - words- words

““The difference between the The difference between the right word and the almost-right right word and the almost-right word is the difference between word is the difference between the lightning and the lightning-the lightning and the lightning-bug," - Mark Twainbug," - Mark Twain

Be a storytellerBe a storyteller Be compellingBe compelling

Word choiceWord choice

Agent Dumb found the missing Agent Dumb found the missing tapes while looking for party tapes while looking for party decorationsdecorations

vs.vs.

Agent Dumb finally stumbled upon Agent Dumb finally stumbled upon the missing tapes while looking the missing tapes while looking for party decorationsfor party decorations

Word ChoiceWord Choice

The witness remembers the The witness remembers the defendant outside the liquor defendant outside the liquor storestore

vs.vs.

The witness claims the defendant The witness claims the defendant was outside the liquor storewas outside the liquor store

Word ChoiceWord Choice

The Government wiretapped The Government wiretapped Defendant’s telephone.Defendant’s telephone.

The Government wiretapped The Government wiretapped Defendant’s home telephone.Defendant’s home telephone.

Subtlety is importantSubtlety is important

Don’t be a drama king/queenDon’t be a drama king/queen

The Government wiretapped one The Government wiretapped one of Defendant’s most personal of Defendant’s most personal possessions, a possession he uses possessions, a possession he uses to discuss his private yearnings to discuss his private yearnings and reams, his home telephone.and reams, his home telephone.

Use Facts PersuasivelyUse Facts Persuasively

Don’t just make conclusory Don’t just make conclusory statementsstatements

Use the facts to speak for Use the facts to speak for themselvesthemselves

The defendant is a lowlifeThe defendant is a lowlife The defendant beat up his The defendant beat up his

mother in a fit of ragemother in a fit of rage

Persuading with the Persuading with the FactsFacts

The appellant has been treated The appellant has been treated barbarically. The conditions at barbarically. The conditions at the prison are inhumane.the prison are inhumane.

The appellant has been treated The appellant has been treated well. The prison is safe and well. The prison is safe and comfortable.comfortable.

oror

The conditions at the prison are The conditions at the prison are barbaric and inhumane. For 23 barbaric and inhumane. For 23 hours every day, the appellant is hours every day, the appellant is confined to a cell six feet long by confined to a cell six feet long by four feet wide, barely enough four feet wide, barely enough space for the single cot with space for the single cot with broken springs, a cracked toilet, broken springs, a cracked toilet, and a leaking sink that constitute and a leaking sink that constitute virtually his entire universe.virtually his entire universe.

The appellant has not been The appellant has not been mistreated. Although his cell is mistreated. Although his cell is smaller than the appellant would like, smaller than the appellant would like, he is not required to share his space he is not required to share his space with other inmates. Moreover, his cell with other inmates. Moreover, his cell is larger than the per capita space is larger than the per capita space allocated to inmates in 60 percent of allocated to inmates in 60 percent of the state prisons. The sink and toilet the state prisons. The sink and toilet may be unaesthetic, but each works, may be unaesthetic, but each works, and when the sink broke six months and when the sink broke six months earlier, it was fixed the same day.earlier, it was fixed the same day.

Effective Persuasion MeansEffective Persuasion MeansKnowing Your AudienceKnowing Your Audience

Judge = generalistJudge = generalist Lawyers & judges = sophisticated Lawyers & judges = sophisticated

readers and thinkersreaders and thinkers Take into account common senseTake into account common sense Know what the readers know and Know what the readers know and

don’t assume.don’t assume. Spell out the pertinent informationSpell out the pertinent information Provide all the necessary facts Provide all the necessary facts

about precedent & the clientabout precedent & the client

Principles of PersuasionPrinciples of Persuasion

Ethos, Pathos & LogosEthos, Pathos & Logos oror Ethics, Emotion & ReasonEthics, Emotion & Reason

EthicsEthics

Ethos – the reputation and Ethos – the reputation and character of a speaker/writer in character of a speaker/writer in an argumentan argument

Your credibilityYour credibility

Ethics – You OweEthics – You Owe

Your client – zealous advocacyYour client – zealous advocacy The court – candorThe court – candor

You MUST disclose material facts & You MUST disclose material facts & legal authoritylegal authority

EmotionEmotion

Pathos – the part of an argument Pathos – the part of an argument which touches the emotionswhich touches the emotions

Make the judge care who wins Make the judge care who wins the case – but don’t over do it. the case – but don’t over do it. Make the jury care who wins the Make the jury care who wins the case.case.

Hostility towards opposing Hostility towards opposing counsel or other parties is always counsel or other parties is always an inappropriate emotionan inappropriate emotion

ReasonReason

Logos – the part of an argument Logos – the part of an argument consisting of evidence and the consisting of evidence and the reasoning based directly on that reasoning based directly on that evidenceevidence

Similar to Memo – analyze the Similar to Memo – analyze the law & apply it to the factslaw & apply it to the facts

Different from the memo – goal is Different from the memo – goal is to persuadeto persuade Interpret the law & its application Interpret the law & its application

to require a favorable conclusionto require a favorable conclusion

Unlike the memoUnlike the memo You must reach a conclusion – You must reach a conclusion –

not probably yes or nonot probably yes or no Tell the court how the law should Tell the court how the law should

be interpreted : be interpreted : ““the provision of statute x must the provision of statute x must

override those of statute y because x override those of statute y because x is more specific to the subject is more specific to the subject matter of this dispute.”matter of this dispute.”

Always explain away the points Always explain away the points against youagainst you

Ignoring opposing arguments Ignoring opposing arguments will diminishwill diminish Your credibilityYour credibility And the strength of your argument And the strength of your argument

Be A StorytellerBe A Storyteller

““[t]he practice of law is not a law school [t]he practice of law is not a law school examination. You get no extra credit for examination. You get no extra credit for citing every decision or making every citing every decision or making every argument. . . .Second, the story is at the argument. . . .Second, the story is at the heart of the entire legal process. Opening heart of the entire legal process. Opening statements, direct examination, cross-statements, direct examination, cross-examination, and final arguments are all examination, and final arguments are all stories. So are motions, applications, and stories. So are motions, applications, and appeals. Every argument is a story, and appeals. Every argument is a story, and every lawyer is a storyteller.” – James W. every lawyer is a storyteller.” – James W. McElhaney, Trial Notebook (3McElhaney, Trial Notebook (3rdrd ed.) ed.)

Becoming a good Becoming a good storytellerstoryteller

More than the facts or a More than the facts or a chronologychronology

A story is the account of an eventA story is the account of an event

The Elements of a StoryThe Elements of a Story

1.1. Stories have beginnings and Stories have beginnings and endings – you decide (ignore endings – you decide (ignore sequence of events; focus on sequence of events; focus on your main point)your main point)

2. Stories have characters. 2. Stories have characters. Make them come aliveMake them come alive

3. Something happens – the key 3. Something happens – the key to it all. How and why something to it all. How and why something happened.happened.

Ethics of a good Ethics of a good storytellerstoryteller

Don’t create facts or invent Don’t create facts or invent evidence, butevidence, but

Arrange and present the facts in Arrange and present the facts in a way to promote your theory and a way to promote your theory and story.story.

Conflicting Narratives in Conflicting Narratives in WalkerWalker

Review the first two paragraphs Review the first two paragraphs and the lastand the last

AccurateAccurate