While the legal writing mavens argue about whether it’s necessary to repeat every assertion three times in the belief that no one heeds the point the first two, almost everyone agrees that it’s crucial to come out of the box swinging.  Even us slavish adherents of the primacy/recency theory are on board.  Which makes this strategy particularly troubling :

In response to our [earlier] decision, Appellant, through his counsel, filed his MOTION FOR REHEARING OR CERTIFICATION TO THE SUPREME COURT. The
first two paragraphs in the motion state as follows:

1. Oh.

2. Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I cannot overcome my indignation engendered by this Honorable Court’s per curiam affirmance of the lower court’s order. I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason. However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue. I assume that I failed in my obligation in the initial briefs.

Thereupon, counsel set forth what he labeled as facts. The statement of facts contained not a single record reference and many of the facts are unsupported by the record. For example, the opening sentence of the statement of “facts” says that Appellees are “both proven con artists …,” yet the record bears no such proof. Nor does a scandalous description such as this have any place in a pleading of this nature.

Oh?  Uh oh.  Oh, no.

Let’s be as clear as humanly possible about this.  A first paragraph consisting solely of the word “oh” is never a good idea.  Never.  No matter how strongly you feel, and how persuasive you believe your really strong feelings to be, it’s not a good idea.  It’s not even a bad idea.  It’s an absolutely, totally, completely, utterly horrible idea. 

What scares me most is that this same notion, though expressed in somewhat different words, is hardly a stranger to argument in the blawgosphere.  There are some who are so deeply caught up in the value of their feelings that they express their emotional reactions first, often to the exclusion of any rational argument, in their effort to make a point or sway opinion. 

Others, of similar belief, will then applaud this gush of emotion, agree completely that they too share feel it, share it, empathize with it, and are moved by it.  This validation of emotion bolsters the blawgers belief that feelings are a substitute for reason.  If it works here, why not in court?

It’s unclear to me precisely when the trend from reason to emotion gained momentum, but even my age-challenged memory recalls a time when such fluff was frowned upon in the blawgosphere.  Arguments of the heart were either the subject of ridicule or ignored by lawyers.  It wasn’t that we weren’t allowed to be sad or happy, but that we were expected to have something substantive to say if our points were to be taken seriously. 

Something happened over time, when expressions of deep passion found others to share in the feelings.  A choir would form, all feeling the same feelings and hugging each other in support.  Passion, of course, is not merely a good thing in persuasiveness, but a critical element of a truly convincing argument. 

But it still requires an argument, with a solid foundation and logical points that lead inexorably to the conclusion that your argument is correct.  Sometimes passion can carry an argument over a hurdle, a bit of a gap in the reasoning that neither fact nor logic can surmount, but it never suffices to replace solid, well-founded reasons.

Oh. 

So counsel wants to let the court know that he’s screaming.  Lunatics scream all the time.  Is his message that he’s crazy?  Does he think his screaming matters more than anyone else’s screaming?  Does the lawyer who screams the loudest win?

On what planet does Jerry H. Jeffrey, Jr., attorney for the appellant, think anybody cares that he’s “indignant”?  Indignant isn’t an argument.  It’s a feeling.  He feels indignant.  For all we can tell, he prefers chocolate ice cream to vanilla.  Who cares?

It did not escape the court’s notice that the attorney for the appellant vomited emotion all over the papers.

In short, it is naked re-argument at best and an emotional tirade at worst, neither of which have any place in this Court.

I can appreciate, as much as the next guy, that some blawgers feel the need for an emotional release, a catharsis, to vent their frustration with the system.  Every once in a while, we need to blow off some steam.  Let it out. Take a deep breath.  Then get back to work, thinking (and writing) like a lawyer.

It doesn’t matter how many hand-wringing, heart-wrenching supporters tell you how deeply you’ve moved them and how they share your pain.  Never, but never, forget that your feelings do not make for a compelling argument.

And never open a motion (or any other paper) with a paragraph consisting of the word “oh”.  Trust me on this.