Saturday, March 15, 2008


Using emotional appeals in briefs generates much emotion, both in those discussing that subject and in their judicial audience. The judge's emotional reaction, unfortunately, will not be the one you want. MoneyLaw locates emotionalization’s counter-persuasiveness in an implied request for judicial partiality, a request the court must refuse and what is worse, a pressure it must resist. (See and; see also

The goals of the target audience control its response to attempted persuasion, and any judicial system must impose two reciprocal demands on its officers: avoiding reversal and managing caseload. (See A judge's susceptibility to emotional influence increases his cases-reversed, because procedure sanitizes irrelevant or grossly excessive emotionalism from the record before it reaches the appellate court. To avoid reversal, the judge must invest mental energy resisting untoward persuasion , energy subtracted from rehearsing your arguments. Insofar as the irrelevant matter gets in the judge's way, it will frustrate and make him angry — with you or your client, not the character you failed to assassinate.

Some attorneys will not relinquish hope of applying our most powerful persuasive methods to legal argument. (See for example Exclusion from 1st Amendment protection marks libel's persuasive power, and under the litigation privilege, attorneys can incorporate allegations otherwise actionable. But the immensity of the task you impose on the judge to remain impartial stands in direct proportion to the effort he must expend to avoid your undue influence, effort subtracted from understanding and rehearsing your brief, a burden diminishing judicial sympathy.

Legal-writing and legal-process courses, typically teaching "Legal Realist" doctrine — holding that courts decide based on the equities and accept arguments corroborating their moralism —foster na├»ve methods of persuasion. Judges differ on questions of moral equity, subjecting moralistic decisions to reversal, except where the issues elicit no conflicting moral intuitions. Even then, emotional amplification defeats persuasion.

Beware of the ghostwriter who stridently asserts your client's rectitude or the opponent-party's nefariousness. Shrillness will not conceal an illicit cry for help.

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