Winning on the Rules: 23 Tools for Persuading with Legal Authority
What's the most effective way to convince a judge you should win? Persuasive rules. Here are 23 tools to help you write rules that win.
An awesome article about "citation stickiness" made the rounds recently. The thrust of it is that judges don't use many of the cases that lawyers put in their briefs. In other words: Judges are often figuring out the rules on their own. This article is just the latest of many suggesting that lawyers are failing in the law department.
Does that surprise you? I'm not sure it should. Writing about the facts is intuitive enough, but writing about rules is tough. Cases and statutes are complex and convoluted. Two things that don't make for easy writing. It's tempting to drop a few citations and generic rule statements on your reader and move on.
But if you do that, you're missing the mark. Your judge will need to craft a compelling account of how the rules work when writing the opinion. So you should, too. Rather than stick to the simple, superficial rule statements that many lawyers opt for, consider the persuasive power of a more sophisticated rule story. Cognitive science supports this approach as well. The more comprehensive your pitch for why a judge should adopt your interpretation of the law, the more likely you are to win.
To write better rule explanations, try this two-step process.
First, package your winning interpretations into simple slogans. By distilling your rule interpretations into a pithy sentence or two and setting it out at the beginning of your rule sections, your reader will have an easier time following along as you dish out the meat.
For example, take this packaged rule from an appellate lawyer:
This snappy headline instantly gives your reader a snapshot of your take on how the rule works.
Second, get more sophisticated about how you prove your interpretations. I call this using authority evidence. Authority evidence is the stuff you use to persuade your reader that your take on the rule is worth following. Like factual evidence, authority evidence comes in many forms. Also like factual evidence, all authority evidence is not created equal, nor is it equally useful in every situation. Instead, you should think hard about what authority evidence you can round up in your case and which types will be most persuasive to your particular audience.
The takeaway: Don't just rely on facts from prior cases to prove your rules. You would never rely on a single piece of factual evidence to litigate a case—and the same is true of authority evidence.
I've gathered 23 types of authority evidence to inspire you. Many should be familiar, but some perhaps less so. Combine several of these in your rule sections to craft compelling standards that will win.
Quotes From Cases
Use specific quotes to illustrate how rules work or apply.
Comparing Language From Different Cases
This is a classic: Comparing language used in different cases to help distinguish, explain, and clarify.
Suggest a court did not really mean what it said by pointing to contradicting language within that same case, or from other relevant cases. Even if language merely seems inconsistent, that is enough to plant a seed of doubt.
Full Fact-To-Fact Explanation of Cases
Compare specific facts from prior cases to your case—the similarities for good principles and the differences to distinguish. Often, it’s best to try to compare an actor in a prior case to an actor in your case.
But note there are two sorts of factual comparing: Silent fact comparisons and reasoned fact comparisons. Silent fact comparisons are when the precedent opinion never mentioned the fact in its reasoning, but the facts were still there somewhere in the case. Reasoned comparisons are more persuasive because the precedent case said that the fact was important.
Jones turned on several facts, all of which suggested that the prejudice was so severe that money could not make the plaintiff whole. The company had been slaughtered in the stock market, plummeting so much each day that analysts questioned whether it could ever recover. Not to mention the company’s pure loss of liquid funds, which nearly put it out of operation. The court highlighted both of these facts in granting preliminary injunctive relief.
Calico did not deal with companies at all: it was a case about a mother asking for custody of her child.
Analyze Case Quality
This is a crucial, and often ignored, set of tools. Consider the age of the case, the thoroughness of reasoning, what court it came from (mandatory? reputable?), who wrote it, the level of the court, how other authorities have treated it, publication status, how many judges signed on, and more.
Identify an Unhelpful Line of Cases and Discard Them All
Make sure you do some digging for the foundational case, statute, or whatever source the rule comes from. Then see if you can attack an unhelpful principle at the source. Or you can use that source to help support a narrower or interpretation of the rule that you might like.
Argue Based on Which Facts a Case Emphasized Most, Least, or Ignored
Often courts give you some idea about which facts were most important. You can use this focus to argue that a fact should be weighed more heavily, or less heavily, than others under the rule.
Argue About Why a Court Was Silent About a Fact or Rule
If a court never addressed a fact that the other side thinks matters—and the same rule was being applied—that is evidence that this fact is not as important as people think.
Argue a Point Is Merely Dicta
If your opposing party makes a strong point, see if you can minimize it by arguing that it was dicta.
Dig Into the Record and Point Out What the Parties Argued in a Prior Precedent Case
In discussing the Wickard commerce clause case, for example, one attorney dived into the history to show that this case was about much more than baking bread:
Argue a Case Distorted the Previous Rule of Law
Identify the inherited rule in a case (the rule as it was before the case) and the processed rule (the rule after the case has applied the rule to facts). Then point out a disconnect.
Argue About the Rule’s Breadth
Did the case narrow its holding to certain triggering facts, or are there broader principals you can pull out even if the facts are quite different?
Discredit, or Bolster, by Looking at How Other Courts or Judges Have Treated Authority
How a different court treated your authority can dramatically impact its persuasiveness. And not just because a different court treated it negatively. Showing that other courts have relied on your authority can be persuasive to judges. This is one of many reasons why you should always check subsequent authority— especially for the authority that's essential to your argument.
Explain Where the Rule Came From or Its Original Purpose
Legal readers are persuaded by the “why.” Why does this rule exist? Are you trying to twist it in a direction that doesn’t bear any resemblance to its original purpose?
Turn Your Opponent’s Case to Your Advantage
When the other side relies on a case heavily, look for ways that the case can also support your position. If you can pull this off, the case will move from your opponent’s column to neutral—or even to your side.
Use Similar Statutes, Laws, or Cases to Bolster or Clarify Your Rule Interpretation
Comparing one rule to another can shed light on how the rule should be interpreted or treated. For example, in U.S. v. Jones, Jones did not have much direct authority to support his argument that placing a GPS on his car was a prohibited search. So he brought in principles from criminal and tort law to support his rule interpretation:
Persuasive and Secondary Authorities
Make sure never to overplay the precedential value of merely persuasive authority. But persuasive authority can be powerful supporting evidence to help prop up a novel interpretation. Just remember that the difference between saying “this is a good idea—others have seen that” and “this is the law” is important.
Legal Principles Like Equity, Basic Rules About Intent, and Basic Rules About Causation
Don't ignore that classic legal principles are familiar to your readers and can help nudge them.
How did the legislature intend for this rule to operate? Make sure your reader is open to this evidence. But if they are, it can be powerful.
Textual Interpretation Canons
Not all legal readers buy into all the canons, but most readers find the basic ones helpful. So make sure to look at the list of canons and find any that might support your interpretation of textual rules.
Do this after the law. But policy is powerful. There are tons of policy arguments—from the less controversial, like clarity for future litigants, to the more controversial, like fairness to one of the parties.
Argue That the Other Side Is Creating a Novelty
Try arguing that the other side is pushing for a new interpretation that has never before been adopted.
Argue That the Other Side Is Creating a Novelty
Judges use theirs, so you should, too. What is the most sensible interpretation of the rules? If you offer the judge commonsense reasons for interpreting the rules in a sensical way, that will often stick.
Really, the possibilities are endless. The power comes from realizing that mustering evidence for your rules is just as important as mustering evidence for trial.
Write.law co-founder Joe Regalia combines his experience as both practitioner and professor to create exciting new ways to teach legal skills. Learn more about Joe