This article originally appeared in The Recorder on March 2, 2021.
Hyperbole. Invective. Ad hominem attacks on the trial judge, opposing counsel, or opposing parties. What do each of these things have in common in legal writing? They are not persuasive. And they’re killing your argument.
There’s been much talk lately about the demise of civility in public discourse, whether on social media, in neighborhood forums, in news commentary, or in the rhetoric employed by political candidates or even elected officials.
In his inaugural address on January 20, 2021, President Joseph R. Biden noted an “uncivil war” raging in America, and implored us to bridge our divides and to take more care in how we deal with one another. These are valuable lessons for a functioning society at large, and particularly for anyone trying to persuade others of their point.
Lawyers litigating an appeal seek to persuade a panel of judges that their argument and client should win the day. Telling your client’s story can make your case. But, telling that story in an uncivil way undercuts your ability to persuade.
Numerous articles and even judicial opinions have noted the rise of incivility in the legal profession. In a 2011 decision by the First District Court of Appeal, In re Marriage of Davenport, the court reminded counsel that “[z]eal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.”
Lest we think incivility impacts only lawyers and clients, here’s a reminder that this impacts how appellate judges persuade each other, too. This point came to a head recently in a Fifth Circuit case, Hewitt v. Helix Energy Solutions Group, Inc., where Judge Ho authored a separate concurring opinion to lament the derisive — and ultimately unpersuasive — tone taken by his dissenting colleague.
Judge Ho noted that the dissent “begins by expressing ‘due respect’ to the majority — and then ends with a well-known literary quote about idiots.’ It concludes that my opinion in this case is worth ‘nothing.’”
Analyzing the lack of persuasive effect of the dissent’s attacks, Judge Ho observed: “As the adage goes, the loudest voice in the room is usually the weakest.”His concurrence then analyzed how the dissent’s hyperbolic points failed to carry the day.
In his own lament about the uncivil attacks on fellow judges by a colleague in the Eleventh Circuit, in an opinion dissenting from the denial of rehearing en banc in Keohane v. Fla. Dep’t of Corrs. Sec’y, Judge Newsom similarly pointed out: “More often than not, any writing’s persuasive value is inversely proportional to its use of hyperbole and invective.” He advised that it would be more persuasive to “turn down the volume and provide a little perspective.”
While it’s more typical for judges to chastise counsel for such transgressions, the commentary in these judicial decisions drives home the point: judges are people too. And when they are making decisions, language that injects hyperbole or attacks people rather than arguments isn’t compelling — whether it comes from counsel or from their judicial colleagues.
So, the bottom line is that incivility in legal writing is unpersuasive. And, if your goal on appeal is to win, why would you do things that undermine your chances?
Harkening back to the basics of rhetoric, focus instead on Aristotle’s three pillars: ethos, pathos, and logos. These are the fundamental elements of how to persuade your audience.
Ethos is the persuasive technique that relates to ethics. To make an ethical appeal, a writer or speaker seeks to convince the audience that they are a credible source. Audiences want to listen to and believe those who are ethical. Being uncivil in your legal writing undermines your credibility, thus tarnishing your message in the eyes of your audience.
Logos is the persuasive technique that relates to logic and reasoning. The writer or speaker cites facts and authorities supporting their point and makes logical analogies. The use of hyperbole or ad hominem attacks undermines your argument, even if you offer other elements of logic and reasoning. This is because you have diminished the focus on — and distracted from — your well-argued points.
Pathos is the persuasive technique that relates to an emotional or sympathetic appeal. Speakers and writers rely on pathos to gain the audience’s sympathy for your point. But if your audience is recoiling from your hyperbolic or hostile language, you undermine your ability to gain sympathy for your argument.
I’m not advising that your writing needs to be bland to be persuasive. Quite the contrary. Vivid and compelling storytelling is vital in crafting persuasive appellate briefs. But drama, vitriol, and attacks are not.
On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in Los Angeles, San Francisco, and San Diego. Johanna Schiavoni (firstname.lastname@example.org) is a certified specialist in appellate law, and her practice at California Appellate Law Group LLP focuses on civil appeals in state and federal courts. She has been the principal brief writer in over 80 cases, has argued more than 30 appeals, and previously served as a law clerk to Ninth Circuit Judge M. Margaret McKeown and Central District of California Judge Christina A. Snyder. She also was the 2020 President of the San Diego County Bar Association. Find out more about Johanna and the California Appellate Law Group LLP at www.calapplaw.com.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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