2. Introduction to Persuasion Developing a Theory of the Case © Prof. Mathis Rutledge

3. Persuasion Learned skill – we all have Learned skill – we all have Movie appeal: Movie appeal: Fairness – we saw your choice last time Fairness – we saw your choice last time Self-interest – Halle Berry’s in it Self-interest – Halle Berry’s in it Desire to please you – I really want to see it Desire to please you – I really want to see it Bargain – you choose next time Bargain – you choose next time

4. First thing Evaluate the case – what is your first impression? Evaluate the case – what is your first impression? Will help develop a theory Will help develop a theory

5. Switching from Objective to Persuasive First, stay objective First, stay objective Each side will have a decent argument, know them both Each side will have a decent argument, know them both Look at the law – objectively Look at the law – objectively

6. Find the Factors Review precedent Review precedent What factors did the court rely on to determine parties should prevail What factors did the court rely on to determine parties should prevail Was it related to policy, facts or procedure Was it related to policy, facts or procedure

7. Confront the hard issues What issues will make a difference What issues will make a difference What are the client’s persuasive points for the issue What are the client’s persuasive points for the issue What are the client’s weakest points What are the client’s weakest points What are the strongest reasons for the client to win/opposing party What are the strongest reasons for the client to win/opposing party

8. Theory of the Case Your story Your story Heart of advocacy Heart of advocacy A lens A lens City of Birmingham case City of Birmingham case

9. Legal Theory – 2 parts Legal framework Legal framework Factual framework Factual framework

10. Generally 2 types of arguments The facts come within a favorable rule of law The facts come within a favorable rule of law A new law (or interpretation of the law) is needed for public policy reasons A new law (or interpretation of the law) is needed for public policy reasons Emphasize facts that favor your client Emphasize facts that favor your client

11. Developing a Theory Must first know Must first know - the law & - the facts “”

12. Lawyer like a salesman You must believe You must believe Straight-face test Straight-face test

13. How to Develop a Theory Think outside the box Think outside the box Study the evidence closely Study the evidence closely Be willing to modify the theory Be willing to modify the theory

14. How to Develop a Theory Don’t forget your client – listen Don’t forget your client – listen Interact with your client Interact with your client

15. Using the Theory It should permeate the case It should permeate the case Orally and in writing Orally and in writing It should explain why your client should win & why your opponent is taking its position It should explain why your client should win & why your opponent is taking its position

16. Major Tool of Persuasion - words “The difference between the right word and the almost-right word is the difference between the lightning and the lightning- bug," - Mark Twain “The difference between the right word and the almost-right word is the difference between the lightning and the lightning- bug," - Mark Twain Be a storyteller Be a storyteller Be compelling Be compelling

17. Word choice Agent Dumb found the missing tapes while looking for party decorations Agent Dumb found the missing tapes while looking for party decorationsvs. Agent Dumb finally stumbled upon the missing tapes while looking for party decorations Agent Dumb finally stumbled upon the missing tapes while looking for party decorations

18. Word Choice The witness remembers the defendant outside the liquor store The witness remembers the defendant outside the liquor storevs. The witness claims the defendant was outside the liquor store The witness claims the defendant was outside the liquor store

19. Word Choice The Government wiretapped Defendant’s telephone. The Government wiretapped Defendant’s telephone. The Government wiretapped Defendant’s home telephone. The Government wiretapped Defendant’s home telephone.

20. Subtlety is important Don’t be a drama king/queen Don’t be a drama king/queen The Government wiretapped one of Defendant’s most personal possessions, a possession he uses to discuss his private yearnings and reams, his home telephone. The Government wiretapped one of Defendant’s most personal possessions, a possession he uses to discuss his private yearnings and reams, his home telephone.

21. Use Facts Persuasively Don’t just make conclusory statements Don’t just make conclusory statements Use the facts to speak for themselves Use the facts to speak for themselves The defendant is a lowlife The defendant is a lowlife The defendant beat up his mother in a fit of rage The defendant beat up his mother in a fit of rage

22. Persuading with the Facts The appellant has been treated barbarically. The conditions at the prison are inhumane. The appellant has been treated barbarically. The conditions at the prison are inhumane. The appellant has been treated well. The prison is safe and comfortable. The appellant has been treated well. The prison is safe and comfortable.or

23. The conditions at the prison are barbaric and inhumane. For 23 hours every day, the appellant is confined to a cell six feet long by four feet wide, barely enough space for the single cot with broken springs, a cracked toilet, and a leaking sink that constitute virtually his entire universe. The conditions at the prison are barbaric and inhumane. For 23 hours every day, the appellant is confined to a cell six feet long by four feet wide, barely enough space for the single cot with broken springs, a cracked toilet, and a leaking sink that constitute virtually his entire universe.

24. The appellant has not been mistreated. Although his cell is smaller than the appellant would like, he is not required to share his space with other inmates. Moreover, his cell is larger than the per capita space allocated to inmates in 60 percent of the state prisons. The sink and toilet may be unaesthetic, but each works, and when the sink broke six months earlier, it was fixed the same day. The appellant has not been mistreated. Although his cell is smaller than the appellant would like, he is not required to share his space with other inmates. Moreover, his cell is larger than the per capita space allocated to inmates in 60 percent of the state prisons. The sink and toilet may be unaesthetic, but each works, and when the sink broke six months earlier, it was fixed the same day.

25. Effective Persuasion Means Knowing Your Audience Judge = generalist Judge = generalist Lawyers & judges = sophisticated readers and thinkers Lawyers & judges = sophisticated readers and thinkers Take into account common sense Take into account common sense Know what the readers know and don’t assume. Know what the readers know and don’t assume. Spell out the pertinent information Spell out the pertinent information Provide all the necessary facts about precedent & the client Provide all the necessary facts about precedent & the client

26. Principles of Persuasion Ethos, Pathos & Logos Ethos, Pathos & Logos or or Ethics, Emotion & Reason Ethics, Emotion & Reason

27. Ethics Ethos – the reputation and character of a speaker/writer in an argument Ethos – the reputation and character of a speaker/writer in an argument Your credibility Your credibility

28. Ethics – You Owe Your client – zealous advocacy The court – candor The court – candor You MUST disclose material facts & legal authority You MUST disclose material facts & legal authority

29. Emotion Pathos – the part of an argument which touches the emotions Pathos – the part of an argument which touches the emotions Make the judge care who wins the case – but don’t over do it. Make the jury care who wins the case. Make the judge care who wins the case – but don’t over do it. Make the jury care who wins the case. Hostility towards opposing counsel or other parties is always an inappropriate emotion Hostility towards opposing counsel or other parties is always an inappropriate emotion

30. Reason Logos – the part of an argument consisting of evidence and the reasoning based directly on that evidence Logos – the part of an argument consisting of evidence and the reasoning based directly on that evidence Similar to Memo – analyze the law & apply it to the facts Similar to Memo – analyze the law & apply it to the facts Different from the memo – goal is to persuade Different from the memo – goal is to persuade Interpret the law & its application to require a favorable conclusion Interpret the law & its application to require a favorable conclusion

31. Unlike the memo Unlike the memo You must reach a conclusion – not probably yes or no You must reach a conclusion – not probably yes or no Tell the court how the law should be interpreted : Tell the court how the law should be interpreted : “the provision of statute x must override those of statute y because x is more specific to the subject matter of this dispute.” “the provision of statute x must override those of statute y because x is more specific to the subject matter of this dispute.”

32. Always explain away the points against you Always explain away the points against you Ignoring opposing arguments will diminish Ignoring opposing arguments will diminish Your credibility Your credibility And the strength of your argument And the strength of your argument

33. Be A Storyteller “[t]he practice of law is not a law school examination. You get no extra credit for citing every decision or making every argument....Second, the story is at the heart of the entire legal process. Opening statements, direct examination, cross-examination, and final arguments are all stories. So are motions, applications, and appeals. Every argument is a story, and every lawyer is a storyteller.” – James W. McElhaney, Trial Notebook (3 rd ed.) “[t]he practice of law is not a law school examination. You get no extra credit for citing every decision or making every argument....Second, the story is at the heart of the entire legal process. Opening statements, direct examination, cross-examination, and final arguments are all stories. So are motions, applications, and appeals. Every argument is a story, and every lawyer is a storyteller.” – James W. McElhaney, Trial Notebook (3 rd ed.)

34. Becoming a good storyteller More than the facts or a chronology More than the facts or a chronology A story is the account of an event A story is the account of an event

35. The Elements of a Story 1.Stories have beginnings and endings – you decide (ignore sequence of events; focus on your main point) 1.Stories have beginnings and endings – you decide (ignore sequence of events; focus on your main point) 2. Stories have characters. Make them come alive 2. Stories have characters. Make them come alive 3. Something happens – the key to it all. How and why something happened. 3. Something happens – the key to it all. How and why something happened.

36. Ethics of a good storyteller Don’t create facts or invent evidence, but Don’t create facts or invent evidence, but Arrange and present the facts in a way to promote your theory and story. Arrange and present the facts in a way to promote your theory and story.

37. Conflicting Narratives in Walker Review the first two paragraphs and the last Review the first two paragraphs and the last Accurate Accurate