In most first-year legal writing courses, the spring semester signals an important shift from objective to persuasive writing. The classic curriculum introduces objective (or predictive) writing, in the form of an office memorandum, in the fall, then switches to persuasive writing, typically an appellate brief (less often, a trial brief) in the spring. Many students struggle with this transition, feeling as if they’ve barely mastered one approach before being asked to change gears. Here are some suggestions to reduce your struggle and improve your persuasiveness.
Rely on Similarities
Legal writing is a skill; it develops cumulatively over time. You’re not starting from scratch. Rather, you’re building on the skills you’ve already learned. The fundamentals of legal analysis remain the same. The Discussion section of a memo and the Argument section of a brief are similarly organized, with rule explanation followed by rule application/analysis. The difference is whether that analysis is expressed objectively or persuasively.
Be Mindful of Differences
You’ll understand the significance of the persuasive approach if you compare the audience and purpose of a memo with those of a brief. A memo is written to a supervising attorney. Its purpose is to assess all sides of an issue and, accordingly, to predict an outcome or recommend a course of action. A brief is written to a judge. Its purpose is to persuade the judge to rule in your client’s favor. How do you achieve that purpose?
Present the Law Persuasively
Draft Persuasive Headings
Every component of your brief is an opportunity to persuade, including headings. Neutral, topical headings were sufficient in a memo, but a brief requires complete, persuasively phrased sentences that convey the desired outcome and refer to determinative facts.
Emphasize the “Best” Cases
Choose precedent with a view toward persuasiveness, especially if your assignment involves open-ended research. You’re likely to find more cases than you need; take persuasive value into account when deciding which cases to use and how to use them. I’m not referring to persuasive authority; I mean recent, mandatory authority with factual and procedural similarities to your assignment. Your rule explanation should emphasize your best cases. You can always bolster your points by listing other cases in a string cite.
Write About the Law From Your Client’s Perspective
Last semester you probably did not dwell on how to phrase a rule in your memo. You may have quoted the rule or paraphrased it without considering whether it implicitly favored one party or another. You probably accepted it as objective. Now it’s time to frame the rules favorably for your client.
Suppose you found the following rule for adverse possession:
Adverse possession, in order to ripen into title, must be: (1) continuous, (2) hostile, (3) open and notorious, (4) actual, (5) exclusive.
Now presume you represent a plaintiff whose claim to quiet title under a theory of adverse possession was denied and who is now appealing this decision. How would you phrase the rule in your appellate brief? You’d want to phrase it favorably to your client’s interests. It might look like this:
A claimant must be granted title to land by adverse possession if her occupation of the land was continuous, hostile, open and notorious, actual and exclusive.
How would the defendant-appellee phrase the rule? Perhaps like this:
Title to land must not be granted under adverse possession unless the claimant proves by a preponderance of evidence each of the following elements: that her occupation was (1) continuous, (2) hostile, (3) open and notorious, (4) actual, and (5) exclusive.
Each rule statement suggests the desired outcome (title must – or must not – be granted) and makes the standard sound relatively easy or difficult to meet.
Make the Strongest Arguments
You don’t have to make every conceivable argument. It is more persuasive to focus on the strongest arguments and omit weaker arguments. This requires careful judgment. Assess all the arguments you might make and decide which are best supported by the law and facts. Keep in mind the burden of proof: the plaintiff has to prove all elements of her claim; failure to prove just one results in a loss for plaintiff and a victory for defendant. If you represent the defendant, this means you may argue selectively, prevailing on a single element plaintiff failed to prove.
Consider Whether to Treat Counterarguments
To assess an issue objectively, you have to consider counterarguments and explain them. When you’re writing a brief, however, you have more latitude. You may choose to address counterarguments that you’re sure your opponent will raise, in a way that disposes of them as weak and non-persuasive. Or, if you’ll have the opportunity to respond, you may make a strategic decision to wait and see what your opponent does first. Always be sure to present your arguments first, then dispose of counterarguments.
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Other helpful Legal Writing posts:
- Embrace The Difference of Legal Writing
- 5 Tips for a Great Legal Writing Assignment
- Dos and Don’ts for Using Sample Documents in Legal Writing
- Podcast Episode 11: Legal Writing 101
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