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The Conditions for, and the Aims and Methods of, Legal Research
Felix Frankfurter was a famous American law professor who was appointed to the Supreme Court of the United States in 1939. Felix Frankfurter read this paper, "The Conditions for, and the Aims and Methods of, Legal Research", on 27 December 1929 at a meeting of the Association of American Law Schools at New Orleans in Louisiana. In this paper, Frankfurter makes some important points about successful legal research that apply today as much as they applied in 1929. External link.
Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs
In this excellent article from the University of Toledo Law Review, Sarah E Ricks and Jane L Istvan explain recurring brief-writing errors and misconceptions, which can assist lawyers to assess the effectiveness of a brief from the judge's perspective. This article can help lawyers to avoid 10 of the most common ways to write a bad brief. Reproduced with permission.
Evidence, Practice and Procedure: Persuasion
David Jackson QC delivered this paper at a Continuing Professional Development Seminar in Brisbane, Australia, on 8 May 2008. Among other things, the paper discusses techniques for persuading judges — in writing and orally. Follow the above link to read the paper on the site for "Hearsay", the Journal of the Bar Association of Queensland.
Argument before the High Court of Australia
This article describes the way lawyers argue cases before the High Court of Australia. The article comes from Tony Blackshield, Michael Coper, and George Williams (eds), Oxford Companion to the High Court of Australia (2001) 31 (reprinted 2003, online edition 2007). It is written by David Bennett QC, Commonwealth Solicitor-General from 1998-2008. Some aspects of High Court practice have changed since the article was written in 2001, so please check the current guidelines and requirements on argument before the Court. Reproduced with permission from David Bennett QC and Oxford University Press. The Companion is available online through Oxford Reference Online.]
In Step 9 of our toolkit, we provide a workbench of techniques that lawyers use when confronted with an unfavorable precedent. Do you ask the court to overrule it? Do you argue that the relevant part of the precedent case was merely obiter dicta? Do you try to confine the precedent strictly to its exact facts? Do you challenge the precedent's form (for example, is the precedent value of a case weakened if it is delivered ex tempore)? Reading this encyclopedic entry by Emeritus Professor Tony Blackshield in the Oxford Companion to the High Court of Australia (2001, reprinted 2003, online edition 2007) may spark some further ideas on how lawyers (and judges) may file down a precedent to "razor thinness" or expand it "into a bludgeon" (to quote Karl Lewellyn in The Bramble Bush (1930)).
Emeritus Professor Tony Blackshield writes about the way judges decide cases. The article comes from the highly acclaimed Oxford Companion to the High Court of Australia (2001, reprinted 2003, online edition 2007). Many of the ideas in the article will sound familiar to readers of our toolkit. In particular—
- the way that the legal analysis phase and the legal writing phase of legal problem-solving interrelate: "the task of reducing one’s thinking to writing is itself an aid to thinking, and sometimes a decisive aid".
- the interdependence of ascertaining the relevant facts and the relevant areas of law: "The first rough apprehension of the fact situation will already trigger tentative intuitions of the area of law that might be relevant—prompting scrupulous attention to some aspects of the facts, and dismissal of others as irrelevant. But as a fuller picture unfolds, those initial impressions may change. Different configurations of the facts may suggest different legal issues, in turn suggesting different perceptions of what are the relevant facts."
- the strength of "cable-like" arguments compared to the more common "chain" analogy: "John Wisdom, in 1944, found ‘not a chain of demonstrative reasoning’, but ‘a presenting and representing of those features of the case which severally co-operate in favour of the conclusion … The reasons are like the legs of a chair, not the links of a chain.’ Chaim Perelman, in 1958, compared a persuasive argument to ‘a piece of cloth’, with a total strength ‘vastly superior to that of any single thread which enters into its warp and woof’."
Thanks to Tony Blackshield, the General Editors of the Companion, and Oxford University Press for permission to reproduce this article. The Companion is available online through Oxford Reference Online.
The Art of Written Persuasion: Part 1, The Rise of Written Persuasion
In this column, Troy Simpson writes on persuading judges in writing. This first article in the series surveys the history of written advocacy in three jurisdictions — England and Wales, Australia, and America — to show why good written advocacy is vital to the modern lawyer.
A Conclusion to Which All of Us Would Readily Assent: Why Lawyers Can’t Write
In this edited transcript of a speech delivered at the Lawyer’s Workstation conference in Sydney, Australia, 29 March 2008, Troy Simpson takes a lighthearted look at lawyers' writing problems (with examples; pdf)
The Inside Scoop: What Federal Judges Really Think about the Way Lawyers Write
In Paper 59 of the Georgetown Law Faculty Working Papers, Kristen K Robbins explains that what troubles federal judges most is not what lawyers say but what they fail to say when writing briefs. Although lawyers do a good job articulating legal issues and citing controlling, relevant legal authority, they are not doing enough with the law itself. Only 56% of the judges surveyed said that lawyers 'always' or 'usually' make their client’s best arguments. 58% of the judges rated the quality of the legal analysis as just 'good', as opposed to 'excellent' or 'very good'. The problem seems to be that briefs lack rigorous analysis, and the bulk of the work is left to busy judges. Many judges also indicated that lawyers often make redundant or weak arguments that detract from the good ones. What judges really want is shorter, harder hitting briefs.
Persuading Judges in Writing: Tips for Lawyers (and How Technology Can Help)
Troy Simpson offers tips for developing a writing style that combines three persuasion processes: logic, emotion, and credibility.
