University of Louisville Law Faculty Blog

Legal Writing Tip - Fact Persuasion Techniques

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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!

On-line Writing Courses

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Amy Quinn has just alerted me that her organization has posted a list of 50 online writing courses open for public enrollment.  While the courses do not pertain directly to legal writing, some of them, such as rhetoric or academic prose, may be of interest to practitioners or law students.

Legal Writing Tip - The Primacy and Recency Effects in a Statement of Facts

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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. 

The Ability to Inspire

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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." 

  

John Adams on Writing Well

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"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 Academy

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I have now completed a quintuple series of works on the subject of severe mental illness in legal academia, the last of which (Severe Mental Illness in the Academy:  A Secret Revealed) will appear shortly on my SSRN site.  In total, they include two reviews of The Center Cannot Hold:  My Journey Through Madness by Professor Elyn R. Saks of the Gould School of Law at the University of Southern California (one in the Louisville Courier-Journal newspaper and one in the Hastings Women's Law Journal), a Community Challenge article in the Courier-Journal, an article in the Louisville Bar Association Bar Briefs, and a major article in the Journal of Legal Education.  Taken as a whole, they present the stories of Professor Saks and me achieving the status of tenured full professors of law while secretly suffering from severe mental illnesses (schizophrenia and bipolar disorder, respectively).  They show the people of Louisville, the Louisville bar, and legal academia as a whole that those with severe mental illness can perform stressful professional duties despite their conditions.  They also show two people who are willing to face the stigma of having a mental illness in order to prove that stigma is unjustified (indeed, both have been overwhelmed with favorable responses to their disclosures).  The legal world should take this message to heart so that in the future law students and faculty, as well as attorneys and judges, need not fear having others know about their psychiatric condition.

21th Century Toll Gates: History Repeats--Tragedy or Farce?

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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

Using a Wiki for Collaboration Between Practitioners, Professors, and Students

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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. 

Legal Writing Tip - The Primacy Effect

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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.

Mental Illness, Stigma, and the Person in the Office Next Door

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Yesterday the following article appeared on page A8 of the Louisville Courier-Journal newspaper as a Community Challenge piece:

 

Mental illness, stigma, and the person in the office next door

 

Recently, I wrote a review for this newspaper of Professor Elyn Saks' memoir

of life as a legal academic who secretly suffers from schizophrenia. My

review did not mention the parallels between my life and Professor Saks'. I

also have a successful career as a law professor. I graduated with highest

distinction from the University of Virginia, finished second in my class at

Duke Law School, clerked for a judge on the U. S. Court of Appeals,

practiced law at a Wall Street firm in New York City and a prominent firm in

Florida, taught for a year at the Top 10-ranked University of Chicago Law

School, and in 1986 joined the faculty of the University of Louisville's

Brandeis School of Law, where I am a professor of law. Over the years, I

have taught a generation of Kentucky attorneys. This happened while I hid

from almost everyone that I have the severe mental illness bipolar disorder

(formerly known as "manic-depressive illness") for which I have been

hospitalized five times and treated constantly for 28 years.

Why did I hide my condition for so long? Mainly, I kept quiet due to the

fear of stigma, which has followed mental illness throughout history. Sadly,

people today stigmatize more than they did 50 years ago. Most no longer use

the racial and ethnic slurs that once were common, but those with

psychiatric disorders still regularly are ridiculed. The Democratic Party

stigmatized when it forced Sen. Thomas Eagleton off its 1972 presidential

ticket after learning he had been hospitalized for depression over a decade

before. Clinton administration official Vincent Foster's concern over stigma

and the possible loss of his White House security clearance if he saw a

psychiatrist, which he did not do, may have led to his suicide. The Kentucky

Board of Bar Examiners stigmatizes when it ignores applicants' "physical"

illnesses but asks such intrusive questions about a counseling history that

law students refuse to seek help they desperately need to avoid having to

answer "yes" to those inquiries. Job applicants hide hospitalizations or

gaps in employment due to mental illness, because they fear disclosure will

keep them from being hired. Families of those with mental illness are so

embarrassed that they are afraid to acknowledge the condition of their loved

ones.

 

 

A history of mental illness is not a moral failing, and contrary to popular

belief, many like me have never had problems with alcohol or illegal drugs.

Although most with severe mental illness pose no threat to anyone,

stereotypes, often reinforced by selective media reporting of events like

the Virginia Tech shootings, unduly link violence with mental illness. A

1999 report of the U.S. surgeon general (along with numerous other sources)

emphasizes that the vast majority of those with mental illness are not

violent and that little of the violence in society is due to them.

If the fear of stigma is so great, why have I told my story? I write to show

that people can be effective members of society in high-level and often

stressful jobs despite their psychiatric conditions. I have thrived in the

intellectually challenging realm of legal academics, where I have matched

wits with both students and colleagues who had no idea about my disease.

Even when my disorder temporarily incapacitates me, I gradually regain my

faculties. I cope with many major, unpleasant and potentially dangerous drug

side effects, but still soldier on.

What do I want? I wish to be accepted for who I am, and not have to endure

stigma or doubt that I can perform now that I have gone public with my

condition. If my message to others with severe mental illness encourages

them to reach for everything in life, my "secret" will have been worth

disclosing.

Those who do not have mental diseases can help those who do by demanding

such things as parity for physical and psychiatric disorders in health and

disability insurance coverage and an end to stigma. According to NAMI (the

National Alliance on Mental Illness), mental disease affects one in five

Americans every year. Mental disorders are the leading cause of disability

for people of ages 15 through 44. Mental illness accounts for over 15

percent of the disease burden in the United States, more than the burden of

all cancers. Mental illness is an illness like any chronic physical disease,

and those with it can live happy and productive lives. Society needs to

recognize this, and change its view of those with mental health conditions.

My accomplishments are attributable to things like appropriate medications

prescribed by an excellent psychiatrist, regular psychotherapy, the support

of loved ones and my own hard work. Such a result is possible for many with

severe mental illness.

Society should willingly pay the medical expenses of those with psychiatric

conditions, as it is far cheaper to cover the cost of maintenance

medications for those who cannot afford them than for them to forego such

drugs and end up in expensive hospital beds. The poverty of many with mental

illness helps explain the syndrome that sees individuals bounce in and out

of hospitals.

In light of all this, it is time that society embrace those with psychiatric

conditions. Of particular interest to me, the Kentucky Board of Bar

Examiners should join many other states and stop discriminating against

those with a history of mental health problems. Louisville already has a

highly successful alliance between NAMI and the Louisville Metropolitan

Police Department via the Crisis Intervention Team program, through which

over 500 LMPD officers have been trained to deal with those with psychiatric

disorders. Because of this program, most get medical treatment rather than

ending up in jail as they did in the past. The public should encourage

things like this, as it sees those with an illness receive proper medical

care rather than be warehoused in a correctional facility which is not

equipped to deal with them.

While not all people with mental disorders flourish as I have done, I show

what is possible. Given the one in five, how many other successful

individuals with mental illness are out there? Perhaps each of us should

look at those in the offices next to us, or our friends and neighbors, and

wonder which of these people secretly live with a severe mental condition.

May my journey through life continue to go well despite the occasional bump

in the road and encourage others to create a world free of stigma and

discrimination against those with severe mental illness.

JAMES T. R. JONES

Professor of law

Louis D. Brandeis School of Law

University of Louisville

Louisville 40292

 

 

I would be happy to respond to any questions.