Category Archives: Writing Persuasively

January 2, 2017

Think About Font

By Dr. Ken Broda-Bahm: 

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This blog is written in Arial font. While I can’t fully control the fonts it shows up in when it travels out in various forms of syndication, for the version that lives on our site at Persuasive Litigator, I like Arial. It is a contemporary San Serif font that is pretty simple and clean, and in common use these days. But, I admit, I have not paid much attention to it. A piece from this past summer by Brendan Kenny in The Lawyerist, however, suggests that I should. And, more broadly, the piece recommends that lawyers should pay more attention to fonts in written persuasion. In the essay entitled, “Hey Hey, Ho Ho, 19th Century Fonts Have Got to Go,” Kenny quotes attorney Mathew Butterick writing that, “Typography is the visual component of the written word.” Litigators like to believe that content is king — and it ought to be, particularly in written argument. But in other settings, lawyers would not ignore the visual component, and the same ought to hold for fonts: Pay attention to what it says…but don’t ignore how it looks. 

It is not just the font, but the overall typography including white space, that invites a reader in and makes attention and comprehension not just possible, but easy. Brendan Kenny writes about “RADD” or “Revoked Attention Donation Disorder” that can be a court’s response to poor font use or bad typography. The phrase “revoked attention” is a good way of thinking about it. Readers will typically donate at least some level of attention as they begin to read, but that donation can be revoked if there isn’t a reward, or if there is too much of a punishment attached to the task. “Judges develop RADD,” Kenny writes, “when lawyers squander the gift of the judge’s attention by ‘scatter[ing] some words across some pages’ instead of presenting those words in the most effective and persuasive way possible.” In this post, I’ll share a few thoughts on font as they relate to written persuasion in litigation as well as their use in demonstrative exhibits.  

Think About Font in Briefing

Brendan Kenny writes that “Bad fonts drive out good fonts,” and law seems to be a setting where that is particularly true. Many habits lawyers bring to written persuasion are  left over from the era of typewriters. There is also the power of habit: Lawyers do what other lawyers do, and when everyone is using Times New Roman at 12 points, then that starts to look like a rule. Of course, in some cases, it actually is. A handful of courts do still tell attorneys what fonts to use, and, shame on you, Alabama, Massachusetts, and New Jersey appellate courts for forcing attorneys to use Courier.Times New Roman, however, is probably the most common choice and won the informal Twitter poll Brendan Kenny conducted for his article. But it is clearly a “19th century font,” and has been in steep decline — outside the law, at least — for many years. TNR won just a plurality in Kenny’s poll of lawyers, though, with a substantial number moving to Georgia or Garamond, or fonts specifically designed for law like those from Mathew Butterick. Kenny concludes with a very convincing ‘Scribd’ side by side comparison of the same brief, first written in an ancient nonproportional font (where the “i” is just as wide as the “w,”), and second with a more modern — Garamond, I think, — font. The difference is striking and should set to rest the idea that font doesn’t matter. 

Think About Fonts in Trial Exhibits

The conventional wisdom is that a serif font — with the little lines at the ends of letters — is better for extended reading, while a San Serif should be used for shorter punchier shorter texts, and especially for labels. In designing demonstratives, the best advice is to keep them simple, use fewer words, and design them to be read quickly, even instantly. When working with call-outs from documents, it is usually best to stick with the choice already in the document by using a cropped image (as Trial Director or Sanction does) or by recreating the same font on a slide, since that visually reinforces the accuracy of the quotation. When quoting apart from the immediate document, however, you can make it any font you want. For that use, you would think that the main point is to make it easy to process, and that likely is the main point most of the time. But there is one interesting exception. A post in A2L Consulting’s Litigation Consulting Report written a few years back, reports on research indicating that in situations where you are trying to avoid the jurors’ confirmation bias, pre-existing attitudes, or quick reactions, it helps to slow down their mental processing a bit, and a less familiar or harder to read font does just that. In most cases, though, quick and effective communication is going to be your goal, and your tools to getting your exhibit there will be: 

  • Sparing use of text, only when necessary
  • A clean, simple, and large San Serif font
  • Plenty of white space so the eye knows where to go

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Other Posts on Written Persuasion: 

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Photo Credit, robmcm, Flickr Creative Commons

December 5, 2016

Avoid Hyperbole

By Dr. Ken Broda-Bahm: 

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Here is the most important thing you can ever possibly learn in law: Hyperbole will absolutely crush your chances of winning. Okay, maybe that’s a little over the top, but there is something about legal writing and oral advocacy that can sometimes encourage a tone of exaggeration that reduces credibility. Based on a list compiled by Gary Kinder at WordRake (courtesy of Eugene Volokh), there are some bad examples out there. One lawyer describing a case about bolts of cloth stored in a warehouse wrote, “This is a story of a legal system run amuck, a Kafkaesque demonstration of tyranny given free rein.” In another case, the Plaintiff wrote, “The Defendant’s actions can only be described as economic sodomy.” Really? That’s the only description?

Of course, there are many more common instances of hyperbole. Is the other side’s argument truly “ridiculous,” for example, or is it merely wrong? The tendency toward hyperbole comes in the form of over-emphatic phrasing, extreme framing, and exaggerated descriptions of the other side’s position. It can crop up in legal writing, oral advocacy, negotiations between parties, arguments before the bench, and even legal marketing. In litigation, advocates who want to come across as civil, reasonable, and credible know that it is often necessary to dial back on some of your most extreme rhetorical impulses. In this post, I will look at a few reasons why hyperbole doesn’t work and why its opposite, understatement, works better.

Hyperbole is Worse than the Plague

So, even if it doesn’t quite rise to the level of the Black Death, there are a few reasons why hyperbole is likely to backfire in a litigation context:

Because hyperbole shows a lack of experience. There is a certain law-student zeal in just opting for the most strident prose one can think of. But even seasoned litigators can occasionally fall victim to the exaggeration that comes from viewing one’s own case through an advocate’s lens. As Brendan Kenny writes in The Lawyerist, “If you exaggerate the strength of your client’s case in your mind, you will naturally do the same in your written and oral advocacy. Because your tone doesn’t fit the case that the judge and the jury are learning about, they will soon start doubting your honesty, sincerity, and competence.”

Because hyperbole comes off as grandstanding for client’s enjoyment. Clients can be delighted when their lawyer socks it to the other side in the strongest possible terms. But it is generally best to avoid techniques that are more satisfying than effective. The hyperbole doesn’t add substance and isn’t likely to make the argument any more appealing to a neutral or skeptical audience. As Thomas Crane writes in the San Antonio Employment Law Blog, “The words we use may provide temporary satisfaction, but they may well lead to long-term pain.”

Because hyperbole invites counterargument. The natural response to an inflated argument or an exaggerated construction is to check it against reality. Is the other side’s argument really “incoherent?” If I can make minimal sense of it, it isn’t. Would the implications of the ruling really be to “destroy” your chances of a fair trial? If not, it might seem even more reasonable by comparison. The problem with hyperbole is that it calls attention, not to the substance of the argument you are making, but to the degree of force that you are choosing to put on it.

Because hyperbole exceeds the burden (and could create a new burden). In just about any situation other than comedy, choosing the hyperbolic expression over the direct and descriptive expression worsens your case. In litigation, it can be seen as stepping up to prove something you don’t have to prove. Calling a claim not just unsupported but “frivolous,” for example, can end up lowering the implied burden for the other side. If they succeed in meeting that minimal threshold of “not frivolous,” then that might seem like enough.

Because hyperbole is akin to crying wolf. If you use extreme expression to call out even common arguments, then what will you use in the event that you have an argument that actually does call for the extreme phrasing? 

Understatement is Okay

“Understatement is a powerful weapon,” Brendan Kenny writes. “Judges and juries probably expect you to exaggerate. So, defy expectations and strengthen your position by understating it. If nothing else, at least you’ll scare your opponent.” Persuasion means more than just presentation of facts, it means participation by an audience. When an audience understands the message to be understated, they participate by adjusting it upward. When they see hyperbole, they respond by dialing it down. So the bottom-line choice between understatement and hyperbole is this: Do you want the audience’s participation to be working for you or against you?

If you want that participation working for you, then there are a few rules of thumb to apply:

  • Don’t extend your argument even an inch beyond what you can credibly support.
  • If you create a formulation of your argument that makes you feel good, ask whether it is likely to make a skeptical audience feel good as well.
  • Lay out the information that allows your audience to reach their own conclusions, instead of ramming those conclusions down their throats.
  • Choose the direct and economical expression over the purple prose of adjective-filled arguments.
  • Whenever you can safely violate expectations by being more reasonable and less extreme than your audience would expect, take that route.

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Other Posts on Rhetorical Style: 

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Image credit: 123rf.com, used under license (edited)

May 15, 2014

Cite Social Science to the Court

By Dr. Ken Broda-Bahm: 

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Regular readers know this blog frequently focuses on the principle that social science matters in litigation. Knowing about public opinion and psychology helps the persuader understand and adapt to the audience. But, going further than that, social science also frequently finds its way into the court’s decisions, particularly when a court steps beyond the law’s formalism to more broadly consider the social implications and truths underlying the controversies before it. At the U.S. Supreme Court level, social science-driven amicus curiae briefs have played important roles in landmark cases like Brown v. Board of Education of Topeka on the effects of segregated schooling, helping the judges determine at that time that “separate” was not, in fact, “equal.” In cases like that, the Supreme Court’s reliance on social science is often justified based on the Court’s quasi-legislative role in making national policy. But the relevance of social science applies at the trial court as well, where there are factual questions that bear chiefly on the case at hand. 

One example of such a question that a trial court needs to answer is whether pretrial publicity is going to deprive a given litigant of the right to a fair trial in a particular venue. A recent article in The Jury Expert (Daftary-Kapur, Penrod, O’Connor, 2014), builds a case for taking the social science on that question more seriously. By comparing a laboratory simulation on the biasing effects of publicity to a more realistic ‘shadow jury’ investigation on the same case, the authors are able to argue that the different methods point to the same conclusion: Pretrial publicity introduces a persistent bias that influences the result. In a response published along with the article, I note a few areas where the presentation of these research results should be adapted in order to address court’s reluctance to rely on this kind of data. The exchange provides a reminder to litigators seeking to use social science  to buttress motions to the court: Instead of treating these citations as matters of fact, treat them as arguments. While they obviously need to be factually true as well, what matters as much, or more, is that the explanation should strategically address the court’s likely objections or natural reluctance to use social science. This post considers the issue and provides a few reminders on framing your social science for the bench. 

Social Science in the Courtroom

There is already a wide body of scholarship focusing on the role of social science in informing court opinions. Much of it is focused on the legal relevance and the implications of a court’s reliance on these so-called ‘extra-judicial’ factors. And courts do not consider these findings in isolation. For example, one article (Rublin, 2011) notes that there is a combination effect: When there is settled social science and widespread public opinion, the court is likely to move (e.g., school integration and gay rights), but where either is lacking, (e.g., death penalty), then the social science is less likely to be convincing. That same author in 2011 prophetically noted, “If the Supreme Court were to hear a case on gay marriage, a national consensus on the issue would be more outcome determinative than settled social science.” 

Social science research finds its way into opinions in a variety of contexts. In criminal cases it factors into disputes over application of the death penalty, juvenile criminal responsibility, racial disparities in sentencing, eyewitness identifications and a number of other issues. In civil cases, social science research is a staple in trademark and trade dress consumer confusion cases, and also has a clear role in disputes over the value and reliability of oral voir dire, the effectiveness of limiting and curative instructions, as well as the influence of pretrial publicity.

What to Address When You Cite Social Science Research

The scholarship on the legal role of social science has focused on theory and the judge’s role in accepting or rejecting the science, and less on the lawyer’s role in offering and framing that research. Indeed, such arguments are often coming in the form of amicus curiae from the social scientists themselves, and not from the attorneys. But to my mind, there is no good reason why attorneys should not be more willing to cite social science when it is on point and helpful to a judge’s decision. There are, however, a few ways the social science citations work a little differently than the law and the facts that a lawyer is used to citing. 

Here are four simple questions that a litigator ought to ask about the social science being cited:

How Do They Know? Citing social science is not like citing precedent: It is not the fact of an opinion, but the basis for one that matters. Because judges are less likely to be versed in evaluating social science, that basis (data, methods, conclusions) ought to be made as clear as possible. As Amy Rublin (2011) noted in her analysis, “It is not merely the number of studies supporting a proposition that matters, but also the cohesiveness of their findings and soundness of their methodology.” 

Is There Consensus? “”Uncertain social science,” Amy Rublin also noted, “may push the Court away from using social science.” Justice Scalia put it perfectly in his dissent in Roper v. Simmons, “Given the nuances of scientific methodology and conflicting views, courts — which can only consider the limited evidence on the record before them — are ill equipped to determine which view of science is the right one.” That means that judges will use the heuristic of ‘settled’ or ‘uncontested’ opinion within the field as a shortcut.

Who Else Has Relied on It? Social science is different from legal precedent, but the power of a prior example still matters. If there are similar circumstances where the social science finding has been used, it helps to reference those. Even beyond legal cases, if other government agencies, for example, have used these kinds of findings, that will be worth noting as well. As Rublin’s discussion demonstrates, it is not just the data and the conclusions of social science that matters, it is also the science’s ability to indicate a settled opinion.

What Interest Is Being Served? Focusing on the ‘interests’ underlying social science may sound like it is at odds with the neutrality that should define science. After all, science, even when it is ‘social,’ should still be factual. But the interest at stake still matters. The question, for example, could be “What interests are served in relying on the social science facts and not just on the inaccurate prior beliefs in this case?” Looking at the question of pretrial publicity, setting aside an exaggerated faith in jurors’ promise to follow instructions and, instead, looking at the empirical effects of pretrial publicity generally and in an individual case, serves a clear interest: a fair trial. Make sure the values underlying the science are made explicit. 

Like law, social science is an epistemology – a way of knowing something — but with its own structure, terms, and frames of reference. Noting that language difference, it helps lawyers to be at least a little bit bilingual.

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Other Posts on Briefing: 

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Daftary-Kapur, T., Penrod, S., O’Connor, M. (2014). Are Lab Studies on PTP Generalizable?: An Examination of PTP Effects Using a Shadow Jury Paradigm. The Jury Expert 26:2 (May). 

Rublin, A. (2011). The Role of Social Science in Judicial Decision Making: How Gay Rights Advocates Can Learn From Integration and Capital Punishment Case Law. Duke Journal of Gender Law & Policy19(1). URL:   http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1197&context=djglp

Image Credit:  Connie Ma, Flickr Creative Commons

February 10, 2014

Complete Your Argument

By Dr. Ken Broda-Bahm: 

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Though Denver is still encased in snow, youth soccer season is just around the corner, and soon I’ll be watching my daughter and her teammates chase the ball around the field. At this age (six), they’re not yet playing positions, so one common bit of advice from their coach is this: “When you have the ball, take it to the goal! Don’t dribble it around and don’t play ‘keep away’ with the other team. Instead, take it to the goal every time.” I was reminded of that advice recently while watching mock trial presentations from a closed-circuit room. “That is why the point where valuations apply has to be after and not before the deductions and discounts,” the presenting attorney concluded. The attorney’s face held the triumphant look of one who had just put the final point on a long and undeniable argument. But watching all the mock jurors on split screen, I saw a wall of blank faces, as if one collective “So what?” was rising up from the group. 

This can be a common occurrence and it reflects a common liability for the legal advocate. The important gap between you and your fact finders is not a gap in intelligence, nor even a gap in the ability to understand each point as it comes along. Instead, the important gap is one of perceived relevance: The knowledgeable and experienced advocate is so much more likely to see the “why this matters” part of the argument that they’re too frequently tempted to just leave it out. That is why the reminder for pint-sized soccer stars is also a good reminder for trial lawyers: Take it all the way to the goal, every chance you get. Legal advocates should make their argument clear and explicit, not simply through the most controversial points, but all the way to the part that conveys “…so that is why we win.” This advice applies not only to jury persuasion, but also — and perhaps especially — to the more involved claims presented to the bench, either orally or through briefs. It’s easy advice to understand, but also easy advice to forget. So in this post, I’ll be sharing three practical tools lawyers can use to make sure they’re making complete arguments and taking it to the goal every time. 

Before You Finish a Point, Ask, “Have I Taken It to the Goal?”

Effective advocates should embrace a style that makes no assumptions, makes every step explicit, and ends with the ultimate conclusions: “The contract is/isn’t breached,” “The patent is/isn’t infringed,” or “Professional malpractice has/hasn’t been committed.” In your own perception, you likely believe you’re already doing this, and you probably are in many to most cases. However, becoming a specialized attorney means developing a large number of mental short-cuts that allow complex ideas to be processed and discussed in short order. Those habits can be hard to set aside even with conscious effort. And the continuing confusion of many mock jurors and judges speaks to the reality that litigators should be even more consistent and even more thorough in laying out each step and, in particular, even more conscious of ending with the conclusion that brings the audience all the way back to the ultimate claim. 

Drawing from my days as an argumentation professor, I want to share three related questions, each with a corresponding checklist for advocates. 

Have You Made a Complete Argument? 

What is a complete argument? The standard reference on that point, courtesy of British logician Stephen Toulmin, is that a complete argument is one that contains three basic elements: 

Complete arg 1
For example, the claim might be “There’s a fire,” the data is “I smell smoke,” and the warrant — you guessed it — is that “Where there’s smoke, there’s fire.” In ordinary conversation, it is common to leave one or more of those parts out, thinking the claim is understood, the data is familiar, or the warrant is just basic logic. But when dealing with arguments in a challenging setting like the law, it can help to be explicit on each step. 

As a simple illustration, think about a products defendant making the claim that the product is generally safe. They support that with data showing very few incidents of injury, but leave out the warrant thinking that it (‘the fact of few incidents is a sign of a safe product’) is obvious. The juror, though, holds to a view that: “Safe means safe, and any incidents are too many.” That juror may supply a warrant that is opposite of what’s intended (“The presence of these incidents is a sign of an unsafe product”). Making the preferred warrant explicit is no guarantee, since the target can still reject it. But by adding in backing for that warrant (e.g., “As long as there are user errors and freak accidents, injuries can never be zero”), advocates improve their chances for both clarity and persuasion. So this simple mnemonic — claim, data, and warrant — offers a ready checklist for the attorney wondering, “Am I being clear enough?” 

Have You Carried That Argument All the Way to the Finish Line? 

What is the conclusion? Or more specifically, how do you know when you’ve made it all the way to an ending point? In a narrative, that ending point usually comes in some kind of closure — a sense of ‘coming home.’ Sometimes that sense of coming home is literal (think, The Odyssey or The Lord of the Rings). At other times, it is a more general feeling that ‘Now, things are complete.’ In an argument, that completeness is the end state you want your target to reach. 

Here is a useful tool for knowing when you’re there. As you complete each point, picture an imaginary audience asking two questions:

Complete arg 2So, you fill in more information and your imaginary audience asks those same two questions again. The point at which these questions become stupid or obtuse is the point where you can say you’ve brought the argument home. 

Have You Beaten the Other Side? 

You may have had the experience of watching the mock jurors or judges accepting an opponent’s argument and thinking, “Wait, I responded to that argument… and they said nothing about my response.” What I’ll often reply in those situations is, “Okay, you responded but, did they know that you were responding?” In other words, did the fact finders recognize what you said as refutation, or did they simply see it as more argument? When you are pulling down one of your adversary’s contentions, it is important for your target audience to know what you’re doing. 

Thankfully there is one tool, widely taught to students of argumentation and debate, for accomplishing precisely that. We have written about it before in the context of rebuttal arguments, but it applies anytime you are responding to or preempting what the other side is saying. It is even a good model for testimony that aims to counter your opponent’s testimony.   

It goes like this:  

Complete arg 3

Following these steps creates a natural way of making sure that the relevance of the point is clear. For example, a defendant in a professional malpractice trial might testify as follows: The plaintiffs’ expert has testified that standard of care requires diagnosis of the disorder before the patient is six months old. (Step one). But it cannot. (Step two). The reason for that is that in five percent of cases, symptoms do not manifest until after six months. (Step three). And if the standard cannot require diagnosis by six months in each case, then we cannot rely on that alone. We have to look at other aspects of care. And when we do that, we see no breach in standard of care. (Step four). 

Attorneys should use these and other tools to address the comprehension gap. For the best clarity, continuously emphasize relevance and draw the connections between the points you’re on and the ultimate conclusion. Carry the point all the way to the goal. 

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Other Posts on Argument:

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Photo Credit: Bods, Flickr Creative Commons 

October 31, 2013

Beware the Ghostwritten Law Blog

By Dr. Ken Broda-Bahm (Really): 

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In the early years of the Persuasive Litigator blog, I used to receive friendly inquiries from time to time from people who were interested in writing the blog for me — blog ghostwriters. Lately, however, those messages from ‘the other side’ have tapered off, and it appears they now get that I’m doing it myself. That is correct: For every post that bears my byline, I have selected the topic, found the research, located the links, and gotten all the nouns, verbs, and articles to play nicely together. I even find, and in this case edit, the royalty-free images. Sherrie Zion expertly proofs every post, and follows up with me when I appear to be using a language other than English, but aside from that, it’s all me — no ghosts needed, thank you very much. 

That approach, however, does not describe all legal bloggers. Sites like this one are only too happy to write your blog for you. It isn’t cheap: One source indicates that my pace of twice-weekly posting would cost around $22,000 per year if I outsourced it — and that is for having the content written by someone I don’t know. But by all appearances, there are still buyers. And we can expect the trend to continue. As law firms are increasingly hearing that they need a blog, law firm marketers and busy lawyers are trying to figure out how to do it. Just in the last couple of years, it seems, there has been a subtle shift from “Would there be an advantage in having a blog?” to “Holy smoke, there is now a disadvantage in not having a blog.”  And that motive to treat a blog as an unfortunate necessity is what drives the trend toward ghostly outsourcing. But it is a  move that is, and should be, more than a little spooky to named authors and readers alike. 

A Spirited Debate About Legal Ghost Blogging

Legal bloggers tend to take a predictably dim view of ghostwritten blogs. In one much discussed incident, Seattle Trial Lawyer, and The Velvet Hammer blogger, Karen Koehler went so far as to publicly “out” the unfortunate ghostwriter who tried to hit her up for business, and temporarily at least, name some of the law firms who used this writer. That post and others like it led to a number of discussions on LinkedIn and in the ABA Journal. While these arguments will provide you with an interesting read, they generally break down to these themes:

Opponents of Ghost Blogging: 

  • Ghost blogging is misleading at best, which is a bad business practice. 
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  • Ghost blogging is unethical at worst, since the attorney is advertising in a dishonest manner. 
  • The point of having a blog in the first place is to build relationships, which a ghostwriter cannot do.  
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Proponents of Ghost Blogging: 

  • Attorneys are simply too busy to do a good job on a blog and to remain a good lawyer at the same time.
  • Incomplete author disclosure is nothing new in law: Clerks write judicial decisions, associates write partners’ briefs, and marketers write proposals. 
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  • As long as the attributed author reviews and signs off, there is no harm. 
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There may be room for disagreement, but I have got to come down on the side of the opponents. Yes, working in law means being busy. But every attorney and every other legal professional will still take part in some activities that promote professional development, improve your brand, and add to your list of connections. If a blog is one of your chosen ways to meet those goals (and that is a big “if,” see #3 below), then you make time for it. The point of authorship, I’d argue, is more important for a blog than it is for more formal legal writing like briefs, proposals, and orders. Not because the blog itself is more important (it isn’t) but because it is a more personal form of engagement. You read, not just to learn something, but to hear from someone, so naturally the identity of the someone matters. Attorneys who give in to the convenience of a ghostwritten blog are sacrificing the best reasons for having a blog in the first place. Without the advantages of self-education and engagement, the ghostwritten blog is just a risky and expensive diversion. 

So, here is what I’d say to the aspiring law blogger who is looking at the prospect of paid help. 

 1. Exorcise the Legal Blog Ghostwriter

If you are going to blog, then go ahead and embrace the advantages of personal involvement. Picking your topics, choosing your focus, putting your thoughts to words — call me crazy, but part of it would be rewarding even if there were no readers. As blogs are increasingly viewed and promoted as something that every firm needs to have, it is obvious that the market is going to get very crowded. And in that crowded market, what is going to get noticed? Quality, uniqueness, and a personal voice: The very features that a ghostwriter is least likely to get you. 

2. Avoid ‘Pseudo Ghostwriters’ As Well

Aside from the overt ghostwriter relationship of “You’ll write something and I’ll put my name on it,” there are more subtle ways the advantages of a blog can be lost through too much help. For example, if your blog is driven by the marketing department, that is a problem. Marketing people know marketing, not your own personal specializations, preferences, and ways of looking at the world. If marketers play too great a role in selecting and shaping your content, then at a certain point, it isn’t your content. The same goes for delegating your writing to associates or research assistants. 

3. Being Blogless is Better Than Hosting a Ghost Blog

Another way your blog can be a ghost is if it simply doesn’t have enough updates. During its first year, Persuasive Litigator (then, Litigation Postscript) was that way, and it was literally more trouble than it was worth. Having to write a post was an irritating interruption, so I decided that we would either have a truly active blog, or we would have none at all. Not everyone has the time or the disposition for an active blog, and those who don’t should have none at all. They should embrace other ways of outreach and education. Want to write something occasionally without the commitment of a blog updated at least weekly? Write for a source that frequently seeks out guest authors, like DeliberationsThe social media mavens all say you need a your own blog, but it isn’t worth it if it is only rarely updated, and it isn’t worth it if it isn’t truly yours. 

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Other Posts Touching on Blogging: 

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Photo Credit: iwannt, Flickr Creative Commons (Edited…by me)

August 5, 2013

Be Well Read (My Favorite Litigation Persuasion Blogs)

By Dr. Ken Broda-Bahm: 

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Where do you find your “Angus”? Not the beef, I mean the character in Jim McElhaney’s beloved column in the ABA Journal. Until his recent retirement, the trial advocacy professor provided humorous but always wise advice on the art of litigation generally through the filter of that sage and experienced legal persuader. Angus wasn’t a real person, nor was he simply a pseudonym for McElhaney himself. As the writer explains in this YouTube clip, McElhaney didn’t want to hold himself out as a guru, but instead used an amalgam of the advice that accumulated over a 35-year career, distilled into simple stories because, as McElhaney succinctly notes, “Stories are the heart of what interests people.” Beyond the ABA Journal column, there is a broader lesson on where we get our influences. As the field of law has moved from an apprenticeship to formal legal education, and for trial lawyers to a system where the gaps left by law school are filled by books and intensive CLE experiences, the reality is that the trial lawyer’s actual “Angus” is bound to be sketched out through a wide variety of sources — and I’d say, the wider the better. 
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The way we create and share knowledge has changed. In addition to the actual mentors, classes, books, and CLEs, there is also a good amount of information that is now freely available from legal blogs, some with a quality comparable to the other sources. On my best days, I aim for that niche as well with Persuasive Litigator. As we close in on the deadline for nominations to ABA Journal’s Blawg 100 list, I’ve been giving some thought to who, within that niche, should have that recognition or should be part of the virtual “Angus” that litigators are building for themselves. So for this post, I wanted to point toward the short list of blogs within my specific niche of legal persuasion. Here they are: 
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The Jury Room

This is the blog that got me interested in blogging. Written by Doug Keene and Rita Handrich of Keene Trial Consulting, the blog offers thrice-weekly posts focusing on current social science as well as stories on continuing themes like “simple jury persuasion” and “Neurolaw.” 

Notable Post: Jurors, Verdicts, Guns, and a Tragedy We’ll See Over and Over, focusing on the public response to the George Zimmerman verdict as well as the social science implications of an armed populace. 

The Litigation Consulting Report

Written by several consultants with A2L Consulting (particularly Ken Lopez, Ryan Flax, and Laurie Kuslansky, with frequent guest posts), this blog covers a broad swath relating to trial technology, graphics, and consulting. 

Notable Post: 13 Revolutionary Changes in Jury Consulting & Trial Consulting, the views of A2L’s founder and CEO on the differences in perception and reality when it comes to trial consulting and the changes we can expect in the future. 
 

The eponymous blog of Tsongas Litigation Consulting, one of the first in this niche, has seen a rebirth since the start of the year. Chris and Laura Dominic, Ted Prosise, Jill Schmid, and Glenn Kuper all contribute posts focusing on psychology, attitude-change, and practical trial skills. 

Notable Post: What the “Game of Thrones” Novels (not the show) Teach Us about Juries, Ted Prosise on some lessons on narrative perspective drawn from the current fantasy novel series. 

Visual Sugar

It is not strictly a litigation blog, but Visual Sugar written by Bethany Auck of SlideRabbit focuses on the broad demands of designing slides and other graphics for presentations. That makes it a useful resource for attorneys and consultants preparing openings, closings, and witness decks.  

Notable Post: The Value of the Visual, a post that critiques and improves the slides from the NSA’s infamous “Prism” slide presentation as well as prosecution slides in the George Zimmerman case. 

Cogent Legal 

Chiefly the work of Morgan Smith, a Bay Area litigator turned consultant, the Cogent Legal blog carries a strong focus on graphic design, while also including notes on trial strategy and law and technology developments. 

Notable Post: How to Create an Opening Statement Using Graphic Immersion, focusing on the continuous rather than occasional use of graphics during opening statement. 

Legal Stage

This blog is the creation of Act of Communication which is Alan Blumenfeld and Katherine James, two theatre-trained litigation consultants. The blog focuses directly on what we can take from drama (generally in the movies, but sometimes from other sources as well) and apply to trial persuasion. 

Notable Post: What Can Witnesses Learn From Romney’s Concession Speech? This favorable review provides a useful look into the meaning of “humble” as distinct from “humiliated.”

Juryology: Art & Science of Jury Persuasion

This blog is the work of Rich Mathews, an attorney, trial consultant, and negotiation expert. The posts take a lighter tone, while still providing a substantive focus on practical persuasion — especially language. 

Notable Post: Francis Scott Key Was a Lawyer. Don’t Be Like Him. A humorous deconstruction of the language in our national anthem, with the lesson that “Sentences that convey memorable meanings move from beginning to end in one direction. No zig zags.” 

Writing may be a solitary activity, but blogging is a little less so. In coming up with posts for Persuasive Litigator, for example, I feel better to know I’m writing within a small community of those whose thoughts and ideas I respect. 

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Other Posts on Legal Blogging: 

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Photo Credit:  jeff_golden, Flickr Creative Commons

September 10, 2012

Persuade Through Dialogue

By Dr. Ken Broda-Bahm:

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P: Hey, have you seen the amicus brief that was written entirely as a cartoon?

S: A cartoon? You mean someone submitted a joke as an amicus brief?

AppleAmicusBrief_jpg singleP: No, not a joke. The lawyer, Bob Kohn, lays out his argument in a series of frames with characters and dialogue, like this. You can see the whole thing here.

S: Wow, did it work?

P: Not in the specific case. The judge went the other way just one day after receiving this cartoon. But it may get better mileage in the court of public opinion, through media coverage and in blog posts including this one.   Continue reading

August 6, 2012

Ethos, Pathos, and Logos: Use All Three in Your Legal Writing and Oral Argument

By Dr. Ken Broda-Bahm:

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Matthew Salzwedel in Lawyerist recently wrote about ethos, pathos, and logos in legal writing. In case you’re trying to remember that early college course in philosophy or public speaking, let me remind you of Aristotle’s famous trilogy: Ethos relates to your credibility, pathos lies in your ability to appeal to emotions, and logos is contained in your logical arguments. Salzwedel’s point is to emphasize that “ethos and pathos are logical fallacies” because they are irrelevant to legal reasoning, and that “Aristotle will smile” on those advocates who are able to forswear them in their own advocacy and rebut the two when employed by others.  Continue reading

April 23, 2012

Climb Down the “Ladder of Abstraction” in Patent Cases (And All Cases)

By Dr. Ken Broda-Bahm:

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For many years, the word among intellectual property defendants has been “Don’t Mess With (the Eastern District of) Texas.” And statistics have borne that out. According to a recent analysis in the Patent, Trademark & Copyright Journal (Pistorino & Crane, 2012), cases in the district have come down in favor of plaintiff patent owners in two out of every three cases. That fact has fostered a gold rush mentality among patent owners, and while some of that venue mojo may just be the force of self-fulfilling prophecies, it is still interesting to look at some of the reasons local observers offer for a continuing plaintiffs’ advantage in Eastern Texas. After all, patent cases tend to be abstract and technical. Why would it be better for plaintiffs to try those cases in Texas locales like Beaumont, Tyler, and Texarkana? Bloomberg News posed that question to McKool Smith attorney Sam Baxter, and his response brings it down to earth:  “People here believe if you own something, you own it and certain rights come with that,” the Marshall, Texas based attorney said, “If you didn’t want someone coming to your pastureland and building a house, you can tell them ‘No.’ ” So it could be that Eastern Texas jurors are just able to understand patent cases in ways that favor plaintiffs and are “grounded” in a literal way.  Continue reading

October 31, 2011

Don’t Be Spooked by a Legal Ghostwriter

By Dr. Ken Broda-Bahm:

Ghost stories

So you are facing a pro se adversary, and you expect that due to the lack of legal representation, this party is apt to produce briefing that is legally unsophisticated, and perhaps even entertaining, right?  Maybe not.  Just as pro se litigation has been on the rise, so too has its evil partner, legal ghostwriting.  When lawyers team up with a pro se litigant in order to provide anonymous help on a specific brief, or to engage in a more durable background role, there are good reasons to see that as a creepy development.  For one, judges are encouraged by common courtesy, as well as case law, to grant a considerable amount of leeway to pro se parties based on the assumption that they are acting as their own attorney.  If in fact the pro se parties aren’t on their own, then they may be gaining an unfair advantage in the briefing process:  The best of both worlds, legal assistance plus lowered expectations.  Continue reading

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