eveloping a§22.1 The Shift to Persuasion A strategy is a plan for reaching a goal. A teacher, a client, or a supervi- sor might ask you, “How can you win? What's your plan?” You won't be able to answer that question until you're well into researching and writing your motion memo or appellate brief. But at some point, you should have an answer. In litigation writing, a lawyer plans by identifying goals (such as persuad- ing a court to adopt rule X or to find fact Y) and then by generating a list of Possible methods of accomplishing each goal. In imagining these alternative strategies, ask yourseff, “What would cause a court to decide in my favor?” After predicting each strategy’s risks and chances of success, the lawyer selects the best one for each goal If you're asked why you did a particular thing and can answer only “I Suess it seemed like a good idea at the time,” people will assume that you didn't really think through the problem. In post-mortems of your work, a supervising lawyer or a teacher might ask you a litany of questions about strategy: What was your goal? What was your strategy? What other possible strategies did you consider and reject? For each rejected strategy, why was it inferior to th What led you to believe that the strate, the ultimate goal? Did you do all the things necessary to execute ie one you did choose? 4y you chose would actually achieve the strategy you chose? Supervisors and teachers ask these questions because a lawyer's job is co make desired things happen. f §22.2 Theories: Of the Case, of the Motion, of the Appeal To make their decisions, judges need more than raw information about the law and the facts. They make decisions by choosing between theories, and you'll lose if your adversary’s theory is more attractive than yours, Think back to a major decision you had to make—perhaps the choice of which apartment to rent or which car to buy. If your decision-making was conscious and deliberative—as judges hope their decisions are—you can probably recall an idea—or a small number of related ideas—that caused you to choose one apartment over another or one car over another. And if your decision-making was conscious and deliberative, there was probably a moment when you first identified and appreciated this idea (or small group of ideas). At that moment, you probably also realized that one of the alterna- tives had become inevitable. Some people who specialize in sales work call this moment the “selling point” because the decision to buy becomes inevi- table once the selling idea is fully appreciated by the buyer. 254 De lay th pr ap be§22.2 Developing a Persuasive Theory , scribed as Persuading is selling, and judges have asourately ae ee “professional buyers of ideas.”! Judges have their eas aoe lawyers and judges use the word theory to refer to tl ne paieaen acer that, in a given case, a lawyer offers for purchase. Dea, eeThe Shift to Persuasion §22.3 Developing a Theory Luck is the residue of design. — Branch Rickey Before the memo in Appendix A was written, Goslin undoubtedly showed his lawyer a deed that, on its surface, seemed to give the nephew every right to have Goslin and his belongings removed. A lawyer who lacks the skill of theory design might say something like this to such a client: “Well, Mr. Goslin, you made a mistake. In the future, don’t give a deed without securing some rights for yourself, either by making a collateral contract or by taking payment for your equity. In the meantime, I think you'll have to move out.” bi nother —and better—lawyer mighe look under the 7 ig ’§22.4 The Shift to Persuasion able idea, such as a drug that will prevent heart attacks, and the company needs venture capitalists to lend money or buy stock so the company can finish the job and get the drug to market. This resembles the situation law- yers are in when they ask a court for relief. A person who wants something (a lawyer or a company’s executives) tries to Persuade a decision-maker (a Judge or an investment banker) who has very rational criteria for making the decision (rules of law or the math of whether an investment will make a profit). If the company’s chief executive officer meets with the investment bank- ers and makes only a logical presentation with Pow Statistics and sales projections, yawns while thinkir this drug to market. But if the CEO tells a compel obstacles to develop the drug, lling story about how the company overcame st It patented, and get regulatory approval, ile—financing—to put the drug on ‘reat suspense” and the p not have a happy ending.” The CEO has the seats, and he s Public and save money at him.” Why? Nothing should be more rational than finance. If the numbers on the PowerPoint slides show that this Project will produce a profit without tog much risk, the b: ankers should invest in it—but typically they won't unless they feel enthusiasm, unless they have been challenge MeKee on this, he'll say, “4 ecause after I consulted with a do: exciting stories to Wall Street, they In a law school ol thing. That is as it should be. Leg ‘We won the race, we got the Patent, we're poised to go “uarter-million lives a year.’ And the banker, just throw : Y Teason alone.” A Story, he says, persuades “by uniting an idea with an emotion.” Every case has a Story. You've been reading them in the casebooks in other courses. Actually, Every case has at least two storieg. side. The one you read in the court's opinion is th 258 to the | insurar balance ata cer In ai Probab] compar aren’t, ;Developing a Persuasive Theory $22.5 did the bad person do? Hi ot 1 Wh: ? How did it aff at happens next? How will the ee good person? (We're worried.) §22.5 Imagery in Theory Development A picture held us captive. — Wittgenstein has a powerful effect in stories and theories. Thinking in images f looking at facts. through a farmer's fence, and over the farm- 1 h ruck driver's insurance company wants to pay as little as pos- sible for this cow, and the farmer, of course, wants much more money. The insurance company’s lawyer will tell a story in which the cow is “a unit of livestock” or “q farm asset,” a8 though the issue is how much money the farmer should get 0 replace a machine-like object that consumes grass aS fuel to produce milk and an occasional calf. The story will focus on numbers from the farmer's books that show the productivity of this object, its aequist- tion costs, depreci | life remaining at the time of its destruction, so forth. The insura Tanwyer will use ehis story bees the he cow to be tional object- “Tell me about the awyer looks forad to tell. “That wasn’t just 4 » replies the farmer, Imagery will help you find new ways ©! A truck runs off the highway, er’s cow. The t ation, useful ance company’s an unexcep! lifferent story ny cow, and numbers show u: The farmer's I he asks the farmer. the only Guernse ofa Holstein that this county. She didn’t le buy in the grocery ed, We didn’t sell because dairies cow,” S| yy cow left in peop! ever tast our mind creates h ants the judge to see a big mer with aff ofa grass-to-mills fection — machine. The c insur y's lawyer the ot - ‘in icem of lives palance sheet, e 2 Solar ata certain NY of dors out of this controversy, the farmer's lawyer In any writ im Bessie’s ing the farmer, and the insurance oe ention the balance sheet. Those things 259The Shift to Persuasion §22.5 good writers, they'll include enough detail so that the reader will see, in the der’s own mind, something like those scenes. : mee is part of storytelling, and it influences how readers, includ- ing judges, feel about the legal issues. Vividness not only helps the reader remember the story, but it makes the story more believable. Imagery makes a story real, , : ; If you develop an eye for revealing detail, your stories will much more quickly come to life as vivid and compelling, Word choice is critical. The right words help the judge see the image. The wrong ones don’t, ’ §22.6 Finding and Developing the Story Facts aren’t the story. They're the raw materials for the story. A client sits in your office, describing in detail a problem that the client wants you to solve. These details are the facts. The client isn’t telling you persuasive story. Clients typically don’t know how to do that. They hire lawyers to do it for them, The client can tell you only facts—“I got this letter in the mail,” “Smith told me the Company was going bankrupt,” “I can’t pay my bills.” In a law school writing assignment, you might get these details as Part of your assignment, Regardless of how you get the facts, they aren't yet a story. The story is hidden in the facts. You have to find it there. Look for details that reveal char- acter. Look for details that lend themselves to persuasive imagery. Assemble these into a Story that fulfill irposes of storytelling—(1) to moti- vate the judge to act, (2) to communicate who your client and witnesses are, (3) to communicate who the other side and their witnesses are, and (4) to neutralize the unfavorable facts. While you are doing this, try telling the story thinking you respect and who doesn’t know the Telling the Story orally helps you refine it and test it out before you start writing it. Speaking it aloud helps you understand and improve it, Then, ask how your friend or relative feels about the story. Does it motivate? Do the characters seem realistic? And so on, After you've worked out the story, rize its essence persuasively in two the story is too complicated or you h; lls the four pu toa friend or relative whose € case you are working on. facts, you won't be able to focus on t] need to focus on them at the very or Statement of Facts. Despite its name, story. As you'll learn in Chapter 26, the graph or two that summarizes your ste Finally, will the judge care? If not, theory on which the story is based, tatement of the Case tis where you tell the uld begin with a para. the Statemen Statement sho: ry’s core facts. the story Won't work. Nor will the 260 yo col der Cor dec wit Doe unf. evid dish evid the] Does did” the o; tery 1 contr way p sive u imput those more ¢ Does j Pretati examir down-t 5. Wh number-l 6. Dav 7. Gee 8. Mal 9. Id.Developing a Persuasive Theory §22.7 §22.7 How to Evaluate Your Theory To figure out whether your theory stands a significant chance of persuad- ing a court, ask yourself the following questions.5 Does your theory “[a]ccount for or explain all of... the unfa- vorable facts”?°> When a judge or jury first looks at the case, if yyour theory is inconsistent with an undeniable fact, one of the two will be considered wrong—and it will not be the undeniable fact. Ambiguous evi- dence and debatable inferences are usually resolved in whatever way is most consistent with the evidence that cannot be questioned. When the time for decision arrives, the adjudicator’s natural tendency is to say, “Let’s start with what we know already and unquestionably.” Does your theory “explain away in a plausible manner as many unfavorable facts as it can"?? It’s not enough to build on the 2-B evidence you like. Your theory should also explain why the evidence you dislike should not prevent a decision in your favor. Is it overcome by other evidence in your favor? Does it prove facts that aren’t as important under the law as other facts that your evidence has proved? Does your theory “[e]xplain why people acted in the way they did”? If your theory doesn’t do that, some significant part of 22-C the case will still seem mysterious to the judge or jury. As long as that mys- tery remains, a judge or jury will feel that your theory hasn’t “solved” the controversy. If atheory assumes that the actors behaved differently from the way people normally do in similar circumstances, the theory isn’t persua- sive unless it includes a compelling reason for the difference. Theories that impute deceit to objective witnesses, for example, are less attractive than those that suggest honest mistakes. Innocent misunderstandings are much more common in life than lying or stealing. Does your theory have a solid basis in fact? Are your inter- 22-D pretations of the statutes and cases reasonable? When a court =) examines your legal arguments, will the court be persuaded? Does your theory seem “consistent with common sense and 22-E ... plausible?” All else being equal, a simple theory is more Ge down-to-earth than a complex one, although even a simple theory must 5. When marking your work, your teacher might refer to these questions by using the number-letter codes that appear next to each question. 7 6. David M. Malone & Peter T. Hoffman, The Effective Deposition 53 (2d ed., 1996), 7. George Vetter, Successful Civil Litigation 30-31 (1977). 8. Malone & Hoffman, supra n. 6, at 53. 9. Id. 261§22.7 The Shift to Persuasion address all the facts. A theory has a commonsense appeal if its internal logic is consistent, if it’s realistic, if its explanations are compatible with the judge or jury's experiences in life, and if it reflects their values and the values of the community to which they feel responsible. The most easily sold theories are those that are based on easily believable interpretations of the evidence and the authorities; that would lead to reasonable results; that don’t ask a judge or jury to believe that people have behaved in improbable ways; and that ask for narrow decisions rather than earth-shaking ones. Like any other kind of consumer, a judge buys only when struck with a feeling of confidence that the purchase will turn out well, without causing injustice or embarrassment on appeal or before the public. Like most peo- ple who have had substantial opportunity to observe human nature, judges can be astute at surmising how various kinds of people would behave under Siven circumstances. And like most people with substantial responsibilities, Judges believe things work out better when people are reasonable rather than extreme. Judges feel safer when they can make narrow decisions, rather than earth-shaking ones, because narrow decisions are less likely to create new problems and controversies. (A judge would much rather find ‘our client is not guilty on the facts than hold that the statute defining the crime is unconstitutional.) A theory that sells in an appellate court has a flavor different from one that seems attractive to a trial court. That’s because trial judges and appellate judges don’t see their work in Precisely the same way. A trial court is a place of routine, and trial judges want to make decisions the way they are usually made and not in ways that would change the world, Although trial judges caeatimes try to avoid the full impact of appellate authority. the rulings of from a superior, and the trial j those rulings—what the Supervising courts expect, In contrast, appellate judges are conscious of their Tesponsibility to see the bigger picture and to keep the law as a whole fair and reasonable, even iF that requires modifying the eommon law now ang then to fit changes in society. Judicial circumspection and the doctrine of stare decisis keep these changes to a minimum, however, and appellate courts generally presume the decision below to be correct, Teversing only if deeply troubled by what happened in the lower court, Generally, theories presented to high appellate courts are more policy-oriented than theories Presented to trial courts, you observed and did at 6: the sith of July at 6:30 in the €vening on A: Iwas checking pri See « A >oODeveloping a Persuasi : — §22.7 oo missing. The defendant didnt appear. | then checked his cell. - laterial had been put in his bed, bunched up so that it looked like somebody was asleep there. His radio had been left on. But he was gone. Q: What did you do? A: We searched the grounds outside the prison. We didn't find the defendant there, so we searched inside the prison—first the perimeter, and then the inside of buildings and containers where someone might hide. We finally found him in the laundry room at 7:39 p.m, Q: What did he have with him? A: Allof his clothing. Q: Does the prison wash the laundry of any other institution? A: Yes, we do the laundry for the state hospital down the road. Its done in the same laundry room where we found the defendant. Q: How is the hospitals laundry transported to and from the prison? A: By truck. The hospitals truck brings in it in the morning and picks it up at about 8 p.m. Q: Are prisoners permitted in the laundry room in the evening? A: No prisoner is allowed in that room after 5 p.m. Hiding in one of the hospi- tal’ laundry bags is an obvious way to escape from the prison. Q: What precautions are taken to prevent that? A: AtS p.m, a guard makes sure all prisoners assigned to work in the laundry have left, and then the door is locked. In addition, the guard opens up each laundry bag that goes to the state hospital and makes sure it has only laundry in it. Then he locks up the room and locks another door on the corridor leading to the laundry room. Nobody is inside those doors until the hospital's truck arrives about three hours later. Q: What guard was assigned that responsibility on the night in question? A: Me. | sent out alll the prisoners and satisfactorily inspected the state hospi- tals bags. Then, I locked the doors and left. Q: Was Mr. Bradwyn assigned to work in the laundry? : A: Yes. But he was not scheduled to work in the laundry room on the day in question. Cross-examination: Q: Are you familiar with Mr. Bradwyn's reputation among other prisoners and among corrections officers? A: He is an exceptionally tidy person. Q: Were there any prior occasions on which you and Mr. Bradwyn had shout- ing matches? : A: Yes. Its almost impossible to inspect his cell. He starts yelling the minute you touch any of his things. He says he doesnt like them moved. Q: What was the defendant doing when you found him? A’ He was washing his clothes. No, actually, he was drying them. They were in the dryer. Q: What items of clothing were in the dryer? : A: Both of his prison uniforms—prisoners are issued two—socks, undershirts, Undershorts. They were still wet. Q: What did you find when you searched Mr. Bradwyns cell? 263§22.7 ‘The Shift to Persuasion A: Letters from his family, personal photographs, letters from his lawyer, an address book. 7 - Before dinner, prisoners are free to move about outside their cells; arent they? Yes. And the same is true after dinner, isnt it? Until 7:30. >Oe oO tion rested. Before any defense witnesses After this testimony, the prosecu the ground that the prosecution had testified, Bradwyn moved ko dismiss on presented insufficient evidence to convict. Develop two theories that satisfy the criteria in §22.7. One theory should support Bradwyn and his motion. The other should support the prosecution and oppose the motion. Use the method outlined in this chapter. The relevant statute and cases interpreting it appear below: CRIMINAL CODE § 745 If any person committed to prison shall break and escape therefrom or shall escape or leave without authority any building, camp, or any place whatsoever in which he is placed or to which he is directed to go or in which he is allowed to be, he shall be deemed guilty of an escape and shall be punished by impris- onment for a term not to exceed five years, to commence immediately upon the expiration of the term of his previous sentence. STATE v. HORSTMAN The crime of escape is established by proof that the defendant was confined in a prison and escaped from such confinement or departed without authority from a place to which she or he was duly assigned. Unauthorized departure is the gravamen of the offense. STATE v. CAHILL While incarcerated, the defendant was i i , d placed in solitary confinement for fighting with another prisoner. A guard inadvertently left the cell door unlocked. The defendant got out and was apprehended on top of the prison wall. : The defendant argues that the evidence does not prove that he committed an sae because there is no evidence that he escaped from the custody of the Department of Prisons. He argui is i the lesser crime of attempted escape. Se Ae The crime of escape was complete, hor é ete, however, when the defendai of his cell. The crime can be committed without leaving the prison ay eae It is enough that the defendant left a place where he was confi Gane ee ined within theDeveloping a Persuasive Theory 822.7 STATE v. LIGGETT The defendant was incarcerated and assigned to work in the prison shop manufacturing auto license plates. On the day in question, the defendant was reported absent from his shift in the license plate shop. After a prolonged search, he was found inside a machine in the prison cannery, using a pillow, and reading a novel, The evidence does not prove beyond a reasonable doubt that the defendant committed the crime of escape. He failed to report for work in one part of the prison and, without authorization, spent the time in another part. That might Violate prison rules and merit intemal prison discipline, but it is not the crime of escape. 265,