USER GUIDE (page 9)

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If you use Win More Cases to persuade the same broad audience (judges) for which we have modeled the toolkit, you must still tailor the end document to your specific audience. We can only generalize about the ways to persuade judges in writing. For example, in Step 9 we say logic persuades judges most; in Step 10, we suggest ways to bolster your credibility in the eyes of judges. These generalizations assume you face an audience of busy, objective, intelligent, dedicated, independent, hard-working, highly educated people who will decide cases ‘according to law’ and who want to do justice between the parties. But judges, as people, have their own individual needs, values, methods, beliefs, backgrounds, preferences, personalities, and other influences:

‘Courts … are not filled by demigods. Some members are learned. Some less so. Some are keen and perspicacious. Some have more plodding minds. In short, they are men and lawyers much like the rest of us … If the places were reversed and you sat where they do, think what it is you would want first to know about the case. How and in what order would you want the story told? How would you want the skein unraveled? What would make easier your approach to the true solution? These are questions the advocate must unsparingly put to himself … If you happen to know the mental habits of any particular judge, so much the better. To adapt yourself to his methods of reasoning is not artful, it is simply elementary psychology.’⁴⁶

Thus, you must individualize your arguments to the particular judge or panel of judges you face. You will want to know more than just the judges’ voting records. For example, you will want to know:

‘each judge’s conscious intellectual process in receiving and probing argument … perhaps more important … the subconscious forces at work—the hidden agendas the judges would vehemently deny, but a perceptive observer would easily recognize … [and] the personal interaction among the judges of the panel—the group psychology.’⁴⁷

We leave it to you to adapt your arguments to the individual judge or judges you face. But we provide the following leads on researching and adapting an argument to a specific audience.

⁴⁶John W Davis, quoted in Nicholas M Cripe, ‘Effective Appellate Argument’ (1984) 70 ABA Journal 56, 57.

⁴⁷James L Robertson, ‘Reality on Appeal’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 179, 179.