Enhancing Credibility in Brief Writing by Using Oral Argument Techniques

Posted on Categories Legal Writing, Public

This semester in Professor Susan Bay’s Advanced Legal Writing course, Rhetoric and Persuasion, our class discussed the means of persuasion: logos, pathos and ethos. Ethos immediately intrigued me because I could not grasp how to employ ethos in brief writing. One legal scholar, Professor Kirsten K. Davis, explains ethos as “classically considered the ‘persuasive force of a person’s character.’” In one word, ethos can be defined as credibility. Reading articles from legal scholars like Professor Davis helped, but I still was missing a connection. And then it occurred to me that I had been familiar with credibility, just in a different branch of advocacy: oral arguments.

My understanding of oral arguments stems from my participation in Moot Court. I am proud to be a Moot Court enthusiast. I did not know about it until Professor Rebecca Blemberg recommended that my 1L Legal Writing, Analysis and Research classmates and I attend the semi-finals and finals of the Jenkins Honors Moot Court Competition. I was awestruck by the oralists. I vividly recall standing with Professor Blemberg, telling her that I could never recite law or formulate an oral argument the way those students did. To my great surprise, one year later, I competed in the Jenkins Competition.

Through participating in the Appellate Writing and Advocacy course as a student and as a student coach, the Jenkins Competition as a competitor and a student coach, and the National Moot Court Competition as a competitor, I have received and shared advice about how to be a credible advocate at the podium. Here are some ideas about credibility that transcend oral arguments, and that you can apply to your own brief writing.

Respect Your Audience.

Respecting your audience is one way to earn credibility. Just as an oralist does in oral arguments, use proper form when addressing courts in your brief (i.e. the court you are writing to is written as “This Court should,” and a court you are writing about should be written as “The court in Smith”). You can also show respect for your reader and earn your reader’s respect by being respectful to others. Address strong counterarguments or, if you are responding, then the opposing counsel’s strong arguments, and provide specific reasons why those arguments are flawed whether it be because of logic, fact, or policy.

One seemingly obvious way to show respect is to submit an error-free brief. This is a minimum expectation, meaning that no matter what arguments your brief contains, your brief should include no citation problems or grammatical errors. An error-free brief illustrates to your reader that you respect the reader and his or her time enough to review your brief in order to catch and remove any errors.

Additionally, you can show respect by being truthful. In oral arguments, if an advocate misstates the law or a fact, and a judge catches the misstatement, an advocate can apologize for the misstatement, state the correct law or fact, and move on. The same cannot be said for brief writing. Be cautious to check statements of law and fact for truthfulness, especially when the statements are summarized such that meaning could be misconstrued. Like checking for citation problems and grammatical errors, ensuring that your statements or law and fact are true shows that you not only respect your reader but also yourself and your work product. Misstating or excluding material facts is also not a smart decision if you are trying to gain credibility. Address a detrimental fact yourself, and put the fact in the light most favorable to you. Also, occasionally concede. It is unlikely that every part of the applicable law or facts will be in your favor, so concede when it is appropriate or necessary for you to do so. When you appropriately concede, you appear reasonable, and thus, gain credibility with your reader.

Finally, always respect your reader both a learner and a teacher. Oral argument exists because the court may need additional information about the law, the facts, or the application of the law to the facts. Successful oralists embrace opportunities to teach the court about the applicable law, or how the law applies to the facts of the case at hand. However, effective oralists also listen diligently when judges ask questions, pose hypotheticals, or share concerns. As a writer, you should think in the same capacity. While you are an advocate, you have to provide the information—even if it is not directly in your favor—that he or she needs to evaluate your case. By including applicable law and fact, as well as helpful background material, you can give the judge confidence that by siding with you, he or she is making the correct decision. You can further bolster your case, give respect, and receive credibility, if you acknowledge the court as a teacher by citing to court cases that show or illustrate something: “This Court explained in Smith . . .” or “This Court cautioned in Black that. . .” By both respecting your reader as a learner and a teacher, and acting as a learner and a teacher, you can appear humble and relatable, and thus, credible.

Employ an Organizational Structure.

Organizational structure is vital to a successful brief or oral argument. With solid and well-understood structure in an oral argument, an oralist can lead the judge through the issues. A successful oralist can concisely state the main issues, or, upon the court’s request, quickly provide the court with the specific rule or conclusion he or she is advocating that the court adopt. However, the oralist can also expand on these key issues, rules or conclusions, because he or she has a thoughtful and seamless structure. If the judge asks questions that take the oralist off course, a seasoned oralist may be able to address the question in a way that allows the oralist to pivot back into the organizational structure.

All of the information about organizational structures above applies even more so when you are writing a brief, because there is no judge to take you off-track while you’re writing your brief. Treat your reader to a brief with effective headings that tell the reader what he or she needs to know about the law and your case specifically. And in the text under your headings, provide point headings at the beginning of each paragraph that tell your reader something new, but that still ties into what you have already exposed the reader to. This leads into the next idea:

Prime Your Reader for Your Ultimate Conclusion.

Just as in oral argument, in brief writing, you may need to prime your reader for your ultimate conclusion, especially when you have leaps in logic between an initial case and your conclusion. In oral argument, an oralist cannot simply say “this Court should hold X.” At the beginning of an oral argument, an advocate has to prime the judge of the ultimate conclusion: “this Court should find that [conclusion] because [explanation 1] and [explanation 2].” Then later, during the oral argument, the advocate may provide the judge with facts and/or law to better explain why the advocate’s rule or conclusion works. When an oralist continuously uses “overlapping propositions together in a chain, . . . [and] the acceptance of one proposition leads inexorably to the next[,]” the oralist has completed one form of priming—the sequential request strategy—to get the judge to understand his or her proposition.

The sequential request strategy was a technique I had used in oral arguments without knowing it until I read Professor Melissa Weresh’s article, Morality, Trust and Illusion: Ethos as Relationship. Professor Weresh suggests four flavors of sequential request strategies: foot-in-the-door, door-in-the-face, foreshadowing, and inoculation. All of these strategies can be employed in brief writing.

Using the foot-in-the-door strategy, you can expose your reader “to a conclusion she is likely to accept,” which will make the reader “predisposed” to the conclusion. Door-in-the-face is the opposite of foot-in-the-door; with a door-in-the-face strategy, you begin with presenting information your reader is likely to reject, operating under the assumption that the initial rejection will make your reader more likely to accept a second, smaller chunk of information. You can also use foreshadowing by alluding to an idea so that when you come back to the idea, the reader has already thought of the idea once before. The final flavor of prime is inoculation: exposing your reader to “a weakened version of arguments against the persuasive message, coupled with appropriate refutation of those opposing arguments.” Especially when your conclusion is difficult to understand by itself, consider using one of those priming strategies to prepare your reader.

Provide Successful Narrative for Your Reader.

Professor J. Christopher Rideout provides a helpful description of narration that relates to ethos and credibility: “central to the lawyer’s theory of the case—‘a simple, plausible, coherent, legally sufficient narrative that can easily be integrated with a moral theme’—and provides the judge or jury with concrete reasons for deciding one way or another.”

Professor Rideout provides three characteristics that you should strive to maintain in your brief just as an oralist should in his or her oral argument: coherence, correspondence, and fidelity. First, a narrative that is coherent—consistent and complete—is more probable and believable. Second, if you craft a narrative that corresponds to what “could” or “typically” happens, your reader is more likely to find you credible. Consider using stock stories. Finally, fidelity: it is “a matter of assessing the substantive worth of a story[.]” Develop a narrative that your reader can agree with and feel satisfied doing so.

The suggestions above are a few of many ways that you can attempt to gain credibility. There are not only other techniques you can use but also external factors that can affect your credibility, such as what your reader may know about you prior to reading your brief. That, however, is another topic for another day.

What makes a brief or its writer credible to you? Feel free to share your thoughts below.

One thought on “Enhancing Credibility in Brief Writing by Using Oral Argument Techniques”

  1. Liz, thanks for your great post. You have distinguished yourself in winning the 2014 Jenkins Honors Moot Court Competition and your work this year on Marquette’s National Moot Court Competition team and as Chief Justice of the Moot Court Association.

    One of the best things an attorney can do in preparing a brief is to talk out their case strategy and arguments, whether by participating in a formal moot of their argument, or by simply conversing about the case with colleagues. The act of orally stating one’s thoughts helps to distill ideas and give them structure, and the people listening to the oral argument can provide good feedback on where to go with the argument. Talking out an argument helps a person to think more creatively about the argument and is terrifically fun.

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