by Thomas M. O’Toole, Ph.D.
Given the way many attorneys talk, I’ve always had this vision of our federal judges being bred in some special ivy league laboratory and raised on a special diet of Plato, Aristotle, Stephen Toulmin, Machiavelli, and others whose works are read only by those who accidentally get invited to dinner parties (i.e. “that guy”). I’ve always envision federal judges as the type who calmly walk away from a vending machine after their bag of chips get stuck in the E4 slot, experiencing no temptation to yell or show man’s physical superiority over machines. Then something amazing happened. A federal judge showed me a childhood picture of him in a Batman costume. Later in the conversation, he told me his wife and him watch So You Think You Can Dance (although, like me, his “watching” consists of sitting in the same room with his wife while it plays on the tele).
Then I read this blog (http://herculesandtheumpire.com/2013/06/20/top-ten-legal-writing-hints-when-the-audience-is-a-cranky-federal-trial-judge/) by Federal Judge Richard Kopf out of Nebraska. My mind bent and melted in ways it hasn’t since my freshman college dorm-mate once said, “hey, try this.” For starters, Judge Kopf talks about situations where he might want to “bitch-slap” counsel in “slow motion,” references Urban Dictionary, and discusses his temptation to refer to some trial attorneys as “retarded.” Reading further into the comments section of the post, Judge Kopf notes, “federal judges make mistakes all the time.”
The façade has finally cracked! It turns out federal judges are not the perfectly rational beings their position implies. They get bored, confused, annoyed, frustrated, and sometimes, vengeful. Heck, Judge Kopf even seems to like pictures as #2 suggests. How insane! Pictures and graphics are only supposed to be for lowly jurors, right?
I once managed a mock bench trial for a client where a retired federal judge (serving as a mock judge), after four hours of presentation by one party, raised his hand and asked, “what is your theory of the case?” Flustered by the embarrassing question, the attorney stumbled over himself, offering a long-winded quasi-response for about two minutes until the judge cut him off, declaring, “if you can’t tell me your theory of the case in one sentence, it means you don’t have one.”
The point is federal judges are human beings too. They have the same psychological needs as all of us. I’ve had attorneys argue they don’t need themes, graphics, or any presentation help because they were dealing with a federal bench trial. The suggestion was, unlike those lazy and simple-minded jurors and state court judges, federal judges prefer large doses of complex information and case law without the framing Huxley’s Epsilons might require. In other words, persuasion and “emotional” appeals are unnecessary since federal judges adopt a simple process of “case law + facts = obvious conclusion.“
The ancient scholars used to view the kind of emotions that go into message framing as inferior, a blemish on the otherwise logical world. Notably, the neurosciences have shown us the notion of the perfectly logical being, at least as described by the old scholars, is a farce. In fact, studies of brain injuries in which the “emotional” parts of the brain have been damaged, thus creating an actual, perfectly logical person, have shown these individuals are incapable of making decisions. They shut down. They will spend most of the day trying to decide between simple things such as whether to write with a blue pen or a black pen. These case studies reveal how vital emotions are to our decision-making process. You can choose to ignore it, but such a strategy is akin to hanging your hat on the fact that “you were right” after an intense fight with your spouse: maybe it makes you feel good about yourself, but that’s about it.
What Judge Kopf’s blog post reveals is that many of the strategies used to motivate and arm jurors to serve as effective advocates for your client in deliberations are equally important for judges…even federal judges. For example, entertainment lies at the core of any successful persuasive effort. Entertainment catches people’s attention and draws them into the message. Entertainment offers variety (for example, visual communication is a form of entertainment) that keeps the trier-of-fact engaged. Themes and theories of the case organize complex cases into simple, psychologically-satisfying principles that make the judge want to resolve the case in your client’s favor. Narrative-like introductions in the case briefing make judges and their clerks want to read more about your argument. Finally, all of these elements bring prominence to key issues in your case and make them more memorable. If, at the end of the day, when the judge thinks about the case, he or she does so through the thematic lens you’ve put forth, you have set yourself up for success. It’s the old maxim, “own the language, own the argument.”
So, here are three quick and easy steps to improve your case presentation to a judge.
1. Develop a controlling idea: Here’s what famous screenwriting scholar, Robert McKee says about a controlling idea:
“A true theme is not a word, but a sentence—one clear coherent sentence that expresses a story’s irreducible meaning…it implies function: the controlling idea shapes the writer’s strategic choices. It’s yet another creative discipline to guide your aesthetic choices toward what is appropriate or inappropriate in your story, toward what is expressive of your controlling idea and may be kept versus what is irrelevant to it and must be cut. The more beautifully you shape your work around one clear idea, the more meanings audiences will discover in your film as they take your idea and follow its implications into every aspect of their lives. Conversely, the more ideas you try to pack into a story, the more they implode upon themselves, until the film collapses into a rubble of tangential notions, saying nothing.”
The importance of a controlling idea is that it provides a central, psychologically-satisfying statement of the case that everything ultimately gets back to. It provides guidance in all of your briefing and oral argument because you can always ask the simple question, “how does this get my trier-of-fact back to my controlling idea?” If the answer is unclear, maybe it’s time to set that issue aside.
2. Focus on your introduction: An introduction is like a movie trailer; if it’s good, people will go see your movie with enthusiasm. If it’s bad, the movie theater will be empty. The introduction is the time to capture the attention of your trier-of-fact and draw him or her in. If you don’t do this on the first page, it’s not going to happen on the sixth page. The first page or two of your briefing should tell the trier-of-fact everything he or she needs to know about the case. If you don’t think this is possible, it means it might be time to pick up the bat-phone and call for some help.
3. Incorporate graphics: The value of graphics for any trier-of-fact is profound. Studies show graphics drastically increase recollection of data and make information much easier to understand. The world of litigation is slowly moving towards greater use of graphics in briefing. I’ve had situations where a judge asked if he could hold on to a copy of a timeline. We live in a visual culture and visual communication is expected. You are visually communicating one way or another even if you choose not to use graphics.