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The article below has been republished in full courtesy of Law360, written by Aebra Coe.
To write persuasively and win court cases, lawyers need to learn to think like judges, according to an academic paper published Thursday, and while getting inside a judge’s head isn't always easy, the paper’s author offers three tips for accomplishing it.
To better predict how judges may respond to their arguments, legal writers need to do more than simply be aware of their audience and actually place themselves in the judge’s shoes, according to “Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience,” written by Sherri Lee Keene, director of the legal writing program at the University of Maryland's Francis King Carey School of Law.
While most legal writers understand the general idea that good legal writing should consider the audience’s needs and serve its intended purpose, many legal writers still struggle with the challenge of producing persuasive legal documents, Keene said.
“Legal writers can work to detach from their advocate role and commit themselves to the role of the decision maker,” Keene said.
The trick, she argues, is to have a method or deliberate process for exploring the judge’s perspective while piecing together a document.
Keene suggested three methods for better understanding how judges think and, consequently, how they might respond to a piece of writing. They include examining prior decisions and briefs that contributed to them, practicing oral argument while writing a brief, and deciding the case as if you are the judge.
Using the first method, lawyers can read how judges have responded to similar arguments in past cases and examine what made those arguments effective or ineffective.
“The process of reading and critiquing other advocates’ briefs on the legal question at stake, as well as the outcome of the court’s opinion, can help the writer to focus on the needs of the legal audience,” Keene said. “If the attorney’s goal is to consider the case from the decision maker’s perspective, it is important that the attorney read[s] these works in a manner that encourages reflection on the relationship between the advocates’ briefs and the court’s decision.”
According to Keene, attorneys often remark that after preparing for oral argument, they wish they could go back and rewrite their briefs. Going through a mock oral argument can bring a number of questions to the table that may otherwise go unanswered in a written document, she said.
“If done correctly, the process of mooting for oral argument will force an attorney to be confronted with the challenging aspects of her case and require her to find succinct, yet thoughtful, answers to the difficult questions raised. Ideally, an attorney will improve upon her written brief by engaging in a practice oral argument before submitting the brief,” she said.
She suggested that if an attorney doesn’t have the time to engage in a full moot, he or she can ask a colleague to listen to a quick oral presentation of the argument and provide their reaction.
Keene said that another way that attorneys can gain perspective and identify what challenges could be made to their arguments is to put themselves in the role of the decision maker.
Attorneys should ask themselves, If they were the judge on the case and decided in the other party’s favor, what reasoning would lead to that conclusion?
“By assuming the role of judge and deciding the case, the attorney allows herself to look beyond her facts to the practical implications of the decision that may be of concern to the court,” Keene said.
The above article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis on energy industry legal issues, visit Law360 today.