Meaningful Conversation

“Good reasons must, of force, give place to better.”

Julius Caesar IV, 3; Brutus over-rules Cassius in planning a battle

          Thinking of the judge/reader as a decision-maker when you are writing allows you to imagine a meaningful conversation inside the reader’s head. The judge might be reading your brief and say to herself, “Yes, that’s familiar; I know that law,” or “I’m confused,” or “That seems unfair,” or “He should have read the contract before he signed it.” You need to anticipate the judge’s analytical journey and the inner monologue that goes with it. If there are some twists and turns in the story or the analysis, you should forewarn them and guide them through.  This is the virtue of frequent signposts recognizing that a skeptical reader will need extra help sometimes in understanding your argument.

          The same is true in oral argument. You should welcome interruption. Interruption is a clear sign that your monologue (and theirs) has become a dialogue. Mission accomplished. When a judge interjects, use the moment to really engage them in your argument. Questions keep the circuit open. Answer them directly, to the best of your ability. Meaningful conversation is the point.

              Some commentators call judges consumers of ideas, and lawyers are sales people of those ideas. Expect some skepticism; embrace the task of overcoming it. Create credibility by acknowledging weaknesses before your opponent does and show why you should still prevail.

Happy Holidays!