From the Professionalism Committee

AS LAWYERS, WE are often called upon to be persuasive - to persuade the judge, the jury, the administrative agency, or the Supreme Court to adopt our position. There are limits, however, to our ability to persuade. For instance, the task of persuading five Justices of the Supreme Court (or at lease three) is limited to 35 pages in a brief and 15 minutes of oral argument. Given these limits, lawyers employ various writing techniques in the pursuit of persuasion.

Here are excerpts from briefs submitted to the New Hampshire Supreme Court in recent months in which the lawyers are endeavoring to be persuasive:

• "The [administrative agency's decision] is tortured and disingenuous. Rather than discuss or analyze [the issue, the agency] adopted the whimsical theory that.... The [agency] compounds this simple-minded analysis by...."
• "Clearly the majority of courts that have [analyzed this issue] have swallowed the candy-coated presentation of its advocates with trance-like rhetoric. The major ity has merely paid lip service to the parties' reasonable expectations, made broad statements under the guise of public policy, and generated a body of unstable opinions based on superficial analysis."
• "This appeal presents an interesting illusion. The defendants, in a last-ditch attempt to avoid answering for their tortuous conduct . . . make an art of distraction. Distraction from the uncontested facts; distraction from the applicable case law; and distraction from [the] proof. They do so by putting before this Court a myriad of irrelevant issues and facts in the hope that the Court will be distracted from the obvious."
• "In its overzealous attempt to reverse the [agency's] decision and to justify its oppressive decision to [not pay the] defendants, the plaintiff's brief improperly and incorrectly puts quotations marks around the word 'earned' to subtly mislead this Court to an erroneous conclusion."
• "Not content with mere speciousness, the [defendant] argues in the alternative (with reckless indifference for truth or consequences) that...."
• "With a stunning lack of candor and ingratitude for [the employee's] service ....The employee respectfully submits that in light of the [defendant's] prolix, confusing and unhelpful [argument], this Court should find....

Other excerpts characterize opposing counsel's arguments as "strained," "absurd," "hyper-focused," "outrageous," and "meritless."

No doubt the lawyers who wrote these briefs thought their arguments would be eye-catching and memorable. They are, and these briefs are also not boring. But my reaction to these characterizations, which is shared by my colleagues, is that they make the task of sorting through often lengthy and complicated facts and legal arguments more difficult. The task is made more difficult precisely because these arguments are eye-catching. In the end, the attention that is drawn to them detracts from the writer's goal of persuading the reader to adopt his or her position. Rather, by questioning the integrity of the other lawyer, or administrative agency, or judge, they change the focus of the brief from the merits of the case to the personal integrity of those involved.

At the same time, the fact that a lawyer resorts to such characterizations immediately raises question's about the writer's own case. Why are the exaggerations and portrayals of opposing counsel or other courts used in the place of logic and controlling precedent? Does the brief employ a tone that impugns the integrity of the other lawyers because this is the best argument in the case? When we are left to raise these questions, the writer's aim of being persuasive misses the mark. Instead, the contrary effect of questioning the validity of the writer's own arguments is the, albeit unintended, result.

Colorful and imaginative writing is a valid and often well received technique of persuasion when used to illustrate the merits of the case. As a supplement to concise, well-thought and organized arguments and citation to controlling precedent and case law from other jurisdictions, such writing can, and does, assist the reader in understanding the arguments presented. However, where arguments such as those presented in the examples above shift from the merits of the case to the integrity of the lawyers, the goal of being persuasive is not attained.

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