While attorneys advocate, judges search for the right result. Here are three techniques for persuading judges by aiding them in their truth-seeking mission.
First, channel your audience’s inner “scientist.” Organizational psychologists refer to four archetypes: The preacher invokes fundamental values. The prosecutor tries to win an argument. The politician seeks to gain approval. And the skeptical scientist searches for the truth.
Though advocating logically involves the prosecutor archetype, the scientist is the best “persona” to channel as you prepare your argument. Like the archetypal scientist, judges’ mission is to search for the truth and to deliver justice accordingly.
Second, use cognitive science to trick yourself into seeing your case from a judge’s skeptical perspective. It’s not easy to poke holes in your own arguments, especially after you’ve spent so much energy marshalling your best evidence, shoring up supporting authorities, and distinguishing contrary ones. We all experience advocacy bias, and it sets in fast.
Try the following tricks:
- Give yourself time between finishing your first draft and revising it. Your future self will be less “in the trenches” as you edit.
- If you like to procrastinate (which can be good for creativity), give yourself a “false” deadline. Revisit the draft a week or two later.
- As you review the briefs, record, and authorities again, take notes on questions that occur to you.
- Review your initial notes from your workup of the case. What weak points did you identify at the outset—that is, before advocacy bias set in?
- Pitch your arguments to your impartial colleagues. Note their questions and concerns.
Third, prepare your brief with your oral argument in mind. Too often, we have the best insights about our cases as we prepare for oral argument, though they would serve us (and the court) better at the briefing stage.
As you brief, focus on the three key questions you’ll be asking yourself as you prepare for oral argument:
- How would you explain your one or two key points to an intelligent but uninformed audience, in a way that will capture their interest?
- For each proposition, “What’s your best authority for that?”
- What’s the best argument on the other side—whether or not your opponent actually advanced it?
Then, go back over your brief and envision the conversation that you will have with the judges or justices during oral argument. That is, picture:
- Exploring the practical implications of your arguments and the ruling you are asking the court to adopt.
- Demonstrating the logical soundness of your position.
- Emphasizing and simplifying the pivotal issues at the heart of the appeal.
- Anticipating and offering satisfying responses to real questions that the court may have.
Incorporate these points into your brief as you edit.
You’re an advocate—but your judicial audience is of the “scientist” ilk. When you anticipate the court’s concerns, you can meet the judges or justices where they are: in a search for the truth and the right result.
This article was originally published in The Bar Association of San Francisco Bulletin and Legal by the Bay Newsletter, March 2021, Volume 15, No. 3, available here. Reprinted with permission.
Josephine is an Appellate Specialist certified by the California State Bar, and Senior Counsel with Hanson Bridgett's Appellate Practice Group. She represents companies, governmental organizations, nonprofits, and other litigants in all manner of civil appeals and writs, and advises clients and trial litigators on strategy and dispositive legal issues.