Week Eleven, Part 1 - Legal Writing: How To Manipulate A Judge

In Legal Writing, we finish our opinion letter and turn it in to be reviewed. Our new task will be to write a memo to the court. Ever the non-lawyer, Professor Teresa Phelps tells us that the court memo “occurs around the trial stage somewhere.”

The court memo is a type of persuasive writing. It works to justify a claim.

“Legal argumentation is not formal argumentation,” Phelps says. “There are no syllogisms. We’re not talking about truth. If it were, we wouldn't have two people in front of the judge. It's about justification. It's about who wins.”

Not talking about truth? Any second I expect to hear the sound of Sir Thomas Moore tumbling off his niche on the south wall of Notre Dame Law School.

We review Aristotle’s three sources of persuasion: pathos, ethos, logos. “Pathos is working on the judge’s emotions,” Phelps says. “Put the judge in the proper frame of mind. She wants to make a sound decisions and feel good about the outcome. We do this by characterizing the facts to create a picture. Ethos is giving the judge the right impression of you the writer. You want to be perceived as thorough, accurate, and fair. This extends to proper citation forms, even though they can be a pain. Logos is proving the truth of the matter. Work to make probabilities look like syllogisms.”

Phelps says, “I'm going to teach you how to control reader-response to text. Said differently, what choices can we make to influence a judge’s reaction to the language in a memo?”

Phelps tells us that the number one priority of the legal memo is to persuade the reader. “Clarity and directness may work against us, so the typical strategies of active voice and subject-verb-object syntax become optional.”

In any legal situation, the legal writer must rate the facts: good for the client, neutral, bad. Phelps tells us we have an ethical obligation to bring all relevant facts before the court. “But in doing so, seek to avoid cognitive dissonance. You don’t want the language to rub up against what you’re asking the court to believe.”

She lowers her voice like Smaug about to show his armor to Bilbo Baggins. “Put your bad facts in the middle of a paragraph, syntactically the weakest place. Subordinate the bad facts in a dependent clause. If it’s your client, use a pronoun with bad facts.”

Another persuasive technique is the use active and passive voice. “If you want your client to be passive, you keep him out of the subject position.”

The third technique is to use storytelling to present the case. “If the client is admirable, tell her story,” Phelps says. “If your client isn’t, present the law as hero.”

Then she plays her trump card. “This was my approach when I was working on legal brief for the Supreme Court.”

We look up in surprise. Is this the unauthorized practice of law?

Phelps continues. “The case had to do with an interstate agreement on detainers. In our client's case, all the procedures hadn't been followed. And after culling through boxes of trial transcripts, I had to tell the story of the interstate agreement on detainers. ‘If this law isn't properly used, the federal government is going to have take over the transporting of prisoners between states.’ The prisoner himself became incidental.”

She winds down. “Voice, fact placement, storytelling. All these are functions of Aristotle’s ethos and pathos.”

I notice she’s abandoned logos.

Phelps concludes: “I want you to eschew totally, absolutely, any loaded language. That’s a red flag. Sophisticated readers never respond the way you tell them to. And a legal memo will automatically be read in bad faith because you're writing as an advocate. Our techniques, while shockingly manipulative, are subtle.”

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