Objective Legal Briefs
By Eunice Park, who teaches legal writing and research at Western State College of Law in Fullerton.
To do your best as an advocate, you must characterize facts in a way that makes it appear you’re not advocating. That may seem contradictory, but the most persuasive facts are those that persuade by their sheer objective weight and inherent logic. If a fact you’re citing hints at anger, annoyance, or sarcasm, leave it out. On the other hand, tedious, dry, or flat factual statements constitute lost opportunities.
Effective appellate briefs actually begin their argument in the statement-of-facts section. Yet the way you shape your statement to support your argument should be invisible to the reader. The facts you choose to include must be absolutely accurate so your reader is firmly ensconced on your side when the argument section begins – and eagerly anticipates the case law and analysis to seal the deal. This same logic applies to settlement letters and any other motion or correspondence in which casting facts in a favorable light is essential to making your argument: Avoid focusing too sharply on making the legal argument so you don’t appear to lapse into pounding the podium with your facts; on the other hand, don’t overlook their power by relegating them to a lifeless list.
How does one persuade by the sheer objective weight and inherent logic of facts that, in reality, are ambiguous or downright unfavorable?
Some effective techniques for converting seemingly objective factual statements into powerfully persuasive arguments surface in a side-by-side review of the opposing appellate briefs filed in New Jersey v. T.L.O. (469 U.S. 325 (1985)). In this case, a public high school vice principal searched the purse of a student (T.L.O.) after a teacher reported that the student had been smoking in the bathroom. The issue before the U.S. Supreme Court was whether the Fourth Amendment’s exclusionary rule should apply to the marijuana found in the student’s purse.
In the filings, each side employs four key tactics to weave legally significant background and facts into its argument.
1. Choose names and titles strategically.
T.L.O.’s brief refers to her accuser as “Ms. Chen, a teacher.” Sounds fair enough, but the state’s brief introduces her as “a teacher of mathematics at Piscataway High School.” Impressive: By omitting the name, the state removes the subjective individuality, leaving only an official acting in an official capacity. Likewise, T.L.O.’s brief refers to her as “a student at the school” – an innocent, neutral role. But the state of New Jersey’s brief reminds us that she is, in fact, “the juvenile-respondent T.L.O.” She already sounds guilty.
2. Include favorable background facts.
The state makes sure we know that a friend who was with T.L.O. in the bathroom “acknowledged that she had been smoking, and Mr. Choplick [the vice principal] imposed three-day attendance at a smoking clinic as punishment.” The reader understands the implication that the vice principal was fair, willing to give a student who admits her wrongdoing a chance. T.L.O. denied smoking at all, and the full extent of her deceit is laid bare by the vivid imagery of “a package of Marlboro cigarettes” found in her purse.
T.L.O. doesn’t mention the forthright friend in her brief, noting instead that, “[a]lthough smoking by students was permitted in designated areas, it was not allowed in the restrooms.” The placement of the information after “although” implies that her smoking infraction was not serious because smoking is allowed on campus, just not where she happened to be doing it.
3. Selectively include or omit detail.
T.L.O.’s brief mentions that Mr. Choplick found “a lot of singles and change” in her purse. The generic description renders harmless and bland the money she earned from selling marijuana joints at school. On the other hand, the state uses detail to implicate the money, noting specifically that Mr. Choplick found “$40 in one-dollar bills,” without making an explicit allegation that the money is her proceeds.
4. Select choice vocabulary words.
New Jersey states that “T.L.O.’s mother acceded to a police request to bring her daughter to police headquarters for questioning.” In T.L.O.’s version, “local police transported T.L.O. and her mother to headquarters.” The choice of “transport” suggests an overpowering, sinister quality to the government’s actions, while “accede” focuses attention on agreement.
Note that neither brief stated anything inaccurately. The writers know that even a whiff of disingenuousness will cause the reader to recoil with distrust. The writers also don’t use inflammatory language or huff and complain about injustices suffered. Instead, each brief calmly presents facts in an interesting narrative that deliberately creates sympathy for the client it supports. The writers allow the facts, carefully described, to persuade on their own merits. Despite purposeful slants, each version wears the mantle of objectivity to set readers up for the argument.
Ultimately, the Supreme Court held that the search of T.L.O.’s purse was reasonable under the Fourth Amendment (469 U.S. at 343). So T.L.O. lost the battle, but she may have won the war because the Court also held that the Fourth Amendment’s prohibition on unreasonable searches and seizures does apply to searches conducted by public school officials.
No doubt each side’s presentation of the facts influenced the outcome, with both the petitioner and respondent winning some sort of victory. As the T.L.O. briefs demonstrate, it is by modeling objectivity that facts advocate most compellingly.
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