Greetings once again from your Executive Director! For those of you who were able to attend the Appellate Practice Workshop in October, you may remember Professor Gerdy touching on the subject of selling a theme to increase the persuasiveness of the narrative in appellate briefs. An interesting and spirited discussion ensued about whether judges (particularly in Utah, but higher court judges in general) appreciate that kind of emotional appeal or cleverness in a written brief. I recently came across something I thought many of you would find informative and interesting on this same topic.
Since teaching legal writing at the J, Reuban Clark Law School at BYU a few years ago, I've stayed plugged in to the world of legal academia, and developments in legal writing in particular. It is, not so secretly, a passion of mine. One of the ways I stay connected is by following the Facebook page of the Journal of the Association of Legal Writing Directors (JALWD). For those unfamiliar with this group, ALWD is a non-profit professional association of directors of legal reasoning, research, writing, analysis, and advocacy programs from law schools throughout the United States, Canada and Australia. Professor Gerdy is a past president of ALWD. Their Facebook page is a great way to get a condensed amount of information on a potentially verbose subject. Forcing members to tweet does limit them to 140 characters, after all!
Recently, the JALWD admin posted Justice Sotomayor's dissent on a denial of certiorari for a death penalty case as a stellar example of using emotional framing to strengthen the persuasiveness of the narrative. Contributors noted that the framing was more important than any use of particular words or phrasing, and didn't rely on hyperbole or overblown verbiage to sell an emotional point. For those interested in reading the opinion, it can be found here. It's basically a master class on how to successfully sell an emotional theme within the potentially stilted confines of a legal document. The first two pages is sufficient to get a feel for how Justice Sotomayor accomplishes setting the proper tone, so don't be put off by the page length!
We plan on having Professor Gerdy do a voice-over of the slides she presented and make it available as an online CLE opportunity for those unable to attend, so stay posted for that development. If anyone is interested in the slides without the voice-over, let me know and I will be happy to send them to you.