Dec 05, 2013 The art of persuading by pen, and not just by voice, permeated with your ch’i
In the trial courts where I practice criminal defense, oral advocacy is heavily important. Nevertheless, an effective criminal defense lawyer also effectively advocates in writing.
To be a great written and oral advocate, nothing beats practice. One day, a professor observed that the musicians in a college musical were far superior to the actors. Why? Because the musicians practice their music daily for many more years than the university actors have been practicing acting daily. Practice, practice, and practice.
Among the several reasons that I blog is to keep my persuasive pen sharpened. By my writing the average equivalent of a half to one page of a book at least one hundred eighty days a year, I come out with the blogging equivalent length of a book that is at least one hundred pages long. I could never come up with all those ideas in just one or two handfuls of sittings.
Here are but a few of my thoughts on written advocacy:
– A judge and prosecutor can interrupt a lawyer’s talking, but cannot interrupt a lawyer’s writing. Well-written motions, trial briefs, sentencing memoranda and post-trial motions together with oral argument are a one-two punch where oral advocacy often can strike the judge more persuasively between the eyes after the advocate sets the stage in writing.
– Find and use your own voice in written and oral advocacy. Avoid stilted and stiff writing, but also avoid being too informal. Use correct grammar, spelling and punctuation. When a writer shows carelessness and sloppiness in writing, why should the reader care about reading the writing carefully and seriously?
– Converse with the judge in your writing, just as you want to converse with the jury during trial even though the jury cannot talk to the lawyer once jury selection is completed. A previous litigation supervisor at my first law firm aptly put it two ways: Write as if you are talking with the judge with a hand in your pocket having a conversation; get your points across almost to the point of shoving them down the judge’s throat without appearing to do so.
– Anticipate the judge’s and your opponent’s written and oral responses to your arguments. Pull the wind out of the sails and the teeth out of the opponent’s arguments.
– Fear no fact, no contested allegation, and no piece of statutory law or caselaw. Make them your facts and your law as best you can.