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3. ADAPT YOUR ARGUMENT TO THE AUDIENCE
Most sources give only vague advice on what ‘adapt your argument to the audience’ means. For example, authors do not always specify whether their advice applies to the style, structure, substance, or some other aspect of your message.51
Nor does every author specify the aspect of the audience to which you should adapt your argument, such as whether you should choose words according to the audience’s personality or whether you should adapt the substance of your argument to more fundamental influences. We have provided below some possible meanings of ‘adapt your argument to the audience’.
(a) Adapt the substance of your argument to the judge’s jurisprudential approach
‘Every experienced appellate advocate will know that different judges have different interests and distinct approaches to those three determinants of many an appeal: legal authority, legal principle and legal policy.’52
Different judges find certain kinds of argument more persuasive than others. For example, ‘judicial policy’ or the ‘right result’ attracts some judges, but precedent alone compels other judges. So, when you choose among the workbench of legal techniques we provide below in Step 9, bear in mind the preferred jurisprudential approach of the judges before whom you appear, and consider adjusting your argument with that in mind.53
[Table continued next page]
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51But compare Maurice Byers, ‘From the Other Side of the Bar Table: An Advocate’s View of the Judiciary’ (1987) 10 University of New South Wales Law Journal 179, 179 (‘I have known two judges … able to take hold of an argument only if expressed compatibly to their mode of thinking. I am speaking not of a stylistic preference but of a capacity to understand, and each had a powerful mind’).
52Michael Kirby, ‘Ten Rules of Appellate Advocacy’ (1995) 64 Victorian Bar News 47, 49; (1995) 69 Australian Law Journal 964, 967.
53William Huhn, The Five Types of Legal Argument (2002) 192. See generally Thomas Michael McDonnell, ‘Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems’ (1998) 67 UMKC Law Review 285.
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