University of Louisville Law Faculty Blog
I just now had the chance to read Preston v. Ferrer, No. 06-1463 (U.S. Feb. 20, 2008). In Preston, the Court held "when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA." The Court mentions that when a contract incorporates the rules of a private arbitration service, such as the American Arbitration Association, those rules "trump" a choice-of-law clause. This discussion is a nice reminder that you should be familiar with the rules of any designated private arbitration service when representing a party drafting or entering into an arbitration agreement. (For discussion of some rules you might consider adopting based on lawyering skills, see my forthcoming article on the subject.)
This week my class looked at a sample set of Statements of Facts in opposing briefs. We identified some fact persuasion techniques that were used well. They are all good techniques to consider using if you are writing a Statement of Facts.
1. Writing the statement of facts from the client's viewpoint.
2. Juxtaposing material adverse facts with material favorable facts in order to deemphasize the adverse facts.
3. Using name and title to humanize the client.
4. Using a descriptive term rather than names to dehumanize certain people or entities related to the opposing party.
5. Using detailed description to emphasize favorable facts.
6. Using concrete nouns and verbs to emphasize favorable facts.
7. Using the passive voice to intentionally hide the actor.
8. Using a brief quotation for emphasis.
Generally, repetition can also be used as a fact persuasion technique. We noticed, however, that one brief had repeatedly used a specific adjective to describe the opposing party. We felt the adjective was overused. This serves as a reminder that fact persuasion techniques should be used judiciously to be effective; if the technique is apparent to the reader, it may fail to persuade.
I would like to thank all of my students for identifying these techniques in use!
This week my class discussed writing a persuasive Statement of Facts. We talked about what to include (and what not to include), how to organize a Statement of Facts, and different writing techniques available to increase the likelihood that the reader will find the story persuasive.
We again focused on the "primacy effect." (For prior discussion of the "primacy effect," click here.) We also discussed the "recency effect." The "recency effect" is a cognitive psychological principle that the last information discussed lingers in the reader or listener's mind and is remembered well.
Based on these principles, we discussed the persuasive value of structuring a Statement of Facts to lead with a paragraph focused on legally relevant facts favorable to the client and to conclude with a paragraph focused on the same type of facts. On the flip side, including material adverse facts in middle paragraphs de-emphasizes those facts.
Similarly, using clauses with favorable facts to begin and end paragraphs is an easy-to-use persuasive writing technique. Placing adverse facts in the middle of the paragraph is a related persuasive writing technique.
When I think of the ability to inspire, my thoughts focus on Louisville's great basketball coach, Rick Pitino. I have heard it said that Pitino can beat you with his players, then trade players with you, and beat you with your own players. Of course, part of what makes a coach like Pitino great is his ability to teach technique and his ability to strategize. Although Pitino is a great strategist (as was Louisville's prior coach, Denny Crum), equally important to Pitino's success is his ability to inspire his players. More than once when a Pitino coached team was trailing in a game, he inspired his team to victory (e.g., note Louisville's win over then # 6 Georgetown last week, and (going father back) Kentucky's astounding 31 point comeback a few years ago).
Some deans also have the gift of inspiration. Oh sure, some deans are simply place-holders who accomplish nothing, aspire to nothing, and do not inspire their colleagues. They simply want to be called "dean." Even worse, some deans have a negative impact on morale and tend to demoralize their colleagues (who, by the way, they would not regard as "colleagues"). These deans have a negative impact on their colleagues, as well as their institutions. When they leave, the faculty fully understands how the French felt when the allies liberated Paris from the Nazis. A chosen few deans are Pitinoesque in their ability to inspire their colleagues (and these deans really do regard their faculty as "colleagues"), and encourage their faculty and their schools to greater heights. In a subsequent entry I will talk about what it takes to "inspire."
"The Faculty of Writing is attainable, by Art, Practice, and Habit only. The sooner, therefore the Practice begins, the more likely it will be to succeed. Have no Mercy upon an affected Phrase, any more than an affected, Air, Gate, Dress, or Manners."
excerpt from letter from John Adams to Abigail Adams, July 7, 1776
My Dearest Friend: Letters of Abigail and John Adams (Margaret A. Hogan & C. James Taylor eds., 2007)
Walking the Tightrope of Bipolar Disorder: The Secret Life of a Law Professor; Severe Mental Illness in the AcademyPosted February 5th, 2008 by James T.R. Jones
Increasingly, it is becoming clear that Louisville’s ambitious two-bridge plan cannot be funded without tolls. Alarmingly (especially to those who are not in love with the plan), some have proposed converting existing free bridges into toll bridges to help pay for the increasingly expensive plan. Even backers of the plan offered in opposition to the bridges, the so-called “8664 plan,” have not ruled out tolls.
Now while toll-roads may not be a big deal in the Northeastern corridor, the mention of tolls in Kentucky rubs a sore spot in the state’s history. Widespread, secretly organized political violence has arisen only four times in Kentucky. First, it occurred in the 1850s when nativist anger at immigrants set Louisville afire in the 1855 riots. Later, in post-Civil war era, Kentucky saw a taste of the anti-black KKK repression of blacks that spread through the South. In the early 20th century Kentucky tobacco farmers donned hoods to burn the warehouses of the distant trusts whose pricing they saw as a danger to their way of life. However, a mere decade before, masks and firebrands were employed in another struggle: the fight against excessive tolls.
In the small-government era of the early 19th century, most Kentucky road construction was “outsourced” to private parties that built roads in order to then be able collect tolls. The legislature regularly gave private turnpike companies the right to sell stock in order to raise money construct local roads, which were later paid off by tolls. However, in most cases, citizens paid steep tolls for years after the day that the turnpike company recouped its outlays. By the end of the century, Kentuckians were fed up with toll roads. Companies often let the roads fall in disrepair, while the toll keepers continued to collect tolls. Locals sporadically took their out frustration over costly but defective roads violently, burning toll gates and harassing toll keepers.
Reacting to their constituents, the 1896 legislature (then controlled by the populist free-silver wing of the Democratic Party) passed a free turnpike law. The law mandated that county officials take over toll roads, but local officials refused to follow the law’s mandate and buy-out the turnpike companies. Their obstinacy set off a wave of violence known as the “Toll Gate War.” In dozens of central Bluegrass counties masked vigilantes on horseback used fire and dynamite to destroy toll gates, more than three hundred from some estimates. Often they were assisted by government officials, even judges, and in one case Governor William O. Bradley had to call out the state militia to stop the violence. However, the raiders ultimately made their point and counties took over the turnpike companies and abolished tolls.
While it is unlikely that Kentuckians will mount their SUVs and take the torch to toll gates on the Sherman Minton Bridge, the talk of paying money to ride bridges that have long been free may well waken a rebellious tendency in the state body public. Perhaps instead of a horse and a firebrand, the modern toll raiders will fire their up Linux server, awaken their zombie machines and launch a denial-of-service attack on the electronic toll system…
Illustration: Old Frankfort Avenue toll keepers house, now Ray Parella's Italian Cuisine
This week my class discussed different forums available for our use on a collaborative project (TWEN, Googledocs, wikis, and Facebook). We also discussed Questions Presented, a topic I will write more about in March after we complete our briefs.
In his article, Public Interest Research, Collaboration, and the Promise of Wikis, Tom Cobb describes how his team-taught class used a wiki to design materials intended to advance representation of people with the disability of "compulsive hoarding and cluttering" in landlord-tenant disputes. The Northwest Justice Project, a legal services office, provided the problem and relevant materials with which to start. After extensive and exhaustive research, the class was able to draft a desk book for legal professionals, educational materials for family members and landlords, a lobbyist's guide, and two articles. The class appears to have been a great way to combine legal writing and clinical education and to make use of an interesting technology.
Cobb has also taught an advanced legal writing class that functioned as a "research wing" for three clinics. In that class, the students prepared a litigation guide for post-conviction cases, drafted a comprehensive desk book analyzing the Washington Supreme Court's approach to statutory construction, and occasionally performed research related to the clinic's ongoing litigation.
The article contains other interesting information and ideas that professors, students, and practitioners interested in collaboration will doubtlessly enjoy reading.
This week my class continued to discuss writing a persuasive Argument section. One of the topics we discussed was the "primacy effect." The "primacy effect" is a cognitive psychology term for the principle that readers and listeners are likely to remember the information they read or hear first. Jansen Voss, Student Article, The Science of Persuasion: An Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 Law & Psychol. Rev. 301, 311 (2005).
Thus, when writing a brief, you are able to persuade merely by placing important information first. Placing important information first increases the likelihood that the reader (whether Judge or clerk) will read and remember the information. So, consider leading your Argument section with a summary of the conclusions you wish the Judge to reach. Placing the conclusion first aids the reader to remember it and also allows the hurried reader to immediately see the bottom-line. For the same reasons, it is a good idea to use conclusion sentences for your headings and sub-headings.
The primacy effect also indicates that leading the Argument with your strongest sub-section, leading your rule explanation with the most helpful authority for your client, and beginning your application with your strongest point can be effective persuasive techniques.