The ability to be clear and persuasive with the written word is a basic skill for lawyers.  But persuasiveness is a subjective matter, difficult to gage until after the fact and even then, usually subject to debate.  That is, of course, unless a court includes in its opinion a critique of the lawyer’s writing.  Rarely is it complimentary.

From Eugene Volokh comes the decision in Live Nation Motor Sports, Inc. v. Davis , including this little tidbit in footnote 5:

[T]he court notes that Davis’s statements are generally defiant and full of inappropriate hyperbole that do not assist the court in determining the facts. Here are a few examples from Davis’s Mot[ion[] to Quash: “Defendants DO NOT ACCEPT these “Supercross LIVE!” copyright labeling by Plaintiff.” “Plaintiffs have come roaring into this federal court with the overwhelming force and the ethics, or lack thereof, of Ghengis Khan.” “Plaintiff has the gaul [sic] to ask this court to affirm its spoils with a partial summary judgment and preliminary judgment.” “A lie repeated five (5) times becomes the truth. Ten (10) times is this Plaintiff’s version of the truth in this complaint.”

Now let’s be frank.  There’s a lot of bad legal writing out there.  A lot.  But for the most part, it’s bad (and ineffective) without being offensive in a way that compels a judge to make specific note of it, to raise it up to the light and show everyone just how bad it can be.  This example was just begging for it.

A few suggestions.  If you want to emphasize a point, select words that make your point.  Do not use all caps.  It’s my practice to never use any means of emphasis, such as underline, bold, italics or caps, to try to make a word or phrase stand out in a legal brief.  I see it as a failure of my written word, if I require some cheap tool to accomplish emphasis.  If I feel that I need to use one of these tools, then I haven’t written my sentence properly. 
Go back and try again.  The language has plenty of words, and you just haven’t found the right one yet.

Metaphors and similes are great means of making a point, but only if they fit well.  Note the Ghengis Khan metaphor used in the quoted paragraph.  Is the point that the plaintiff brought with him a Mongolian horde?  The analogy is also extended to question the plaintiff’s ethics for having brought the action.  This is always a mistake, impugning the ethics of an adversary (not to mention Ghengis) for simply disagreeing with you.

The writing further emphasizes the one thing that no judge cares a wit about; what the litigant thinks about his own position.  Who cares whether the defendant accepts plaintiff’s claims?  In fact, who cares what the litigant thinks about anything?  The point of legal argument is to persuade a judge, not to tell the judge what you think.  You don’t get a vote, and announcing to a judge that you, in effect, don’t care what he rules because you are so firm in your belief that no one can shake it is tantamount to contemptuous behavior.  This is not the way to make friends.

The use of hyperbole can be an effective weapon, or a clear indication to the court that you are full of it.  By claiming that the other side is the “worst ever in the history of man,” you’ve demonstrated that you are utterly clueless.  Young lawyers from the government tend to do this all the time, tossing around their favorite words like “frivolous”, “baseless” and “meritless” rather than responding to substantive arguments.  They get away with it only because (1) judges expectations from government lawyers are low, (2) they are from the government and judges realize that the interests of the government surpass the dopiness of its lawyers, and (3) they do it with such regularity that no one even notices anymore.

But lawyers outside the government can’t get away with this type of writing.  No, your adversary’s argument is not the worst ever, or the most unethical, or the utterly baseless.  It’s not convincing to claim that it’s so.  Instead, it just annoys the judge, who then discounts your credibility. 

A while back, I had a pissing match debate with some anonymous blogger who called himself MoneyLawyer over something he called the “Conan Brief.”  Now, I’m no fan of any self-anointed pundit who lacks sufficient balls to post under his own name and subject his credentials to scrutiny.  MoneyLawyer was such an animal.  But more importantly, his point was not incorrect, but taken to an unwarranted extreme.
 

Many lawyers mistakenly structure their arguments so that they demand an emotional investment from judges.  Their arguments ask the judge to cheer for them, to grant the relief because the judge wants to grant it. Their prose is emotionally charged, laced with opinions about the facts and attacks on the other side’s reasoning. It conjures images of Conan smiting his enemies with a broad sword. This is a bad way to convince a judge who is charged to remain impartial. Many judges interpret this type of writing as overcompensation for a weak legal position. I have read a lot of Conan briefs, but I have yet to see one obtain the relief it requested.

This view supported the antiseptic approach to legal writing.  Cool, calm and deliberate, devoid of emotion or passion.  He’s dead wrong on this count, and irony was that his “proof” is that he’s read what he considers “Conan briefs” and he’s never seen one “obtain the relief it requested.”  The non-sequitur aside, his hyperbole (never?) belies his lack of credibility.  After all, even a clock that’s stopped is right twice a day.

Proffering a strong, substantive argument does not require that you remove all heart from your work.  While emotional prose that interferes with your ability to make your substantive point, or lacks the substantive back-up to clearly and convincingly show why you feel strongly, is ineffective, communicating your strong belief in the correctness of your legal position or policy choice creates an internal integrity to your argument. 

On the flip side, I note that I was once accused in a decision on my motions in a high profile murder case by a judge with whom I had feuded for years of being hyperbolic.  This wasn’t the first time this judge went out of her way to gratuitously attack me, so it came as no surprise given the media coverage that she would take a swipe again. 

Knowing that any crack in my argument would be exploited by the judge, I was more than cautious in crafting papers that were beyond reproach.  I had others, who were very close to the judge, as well as friendly members of the press, vet the papers before they were submitted, and made sure that they knew that this judge was the type who would use her bench as a platform to launch a personal attack. 

When the attack came, the judge was castigated for abusing her position for personal reasons, and for her inappropriate and biased opinion.  Using the “6 ‘P’s,” anticipation of attack can be turned around and used to your advantage, provided that you don’t do something stupid in the papers to deserve it.

So be Conan all you want, but be a smart and persuasive Conan.  Pissing off the judge just isn’t smart.

With that in mind, consider this: