Coloring The Judge's Glasses

A lawyer's purpose is to persuade. One of his tools is the legal memorandum.

A legal memorandum is a document designed to address a legal issue. A legal memo can be written from an objective or a persuasive perspective. In writing to analyze or to persuade, Bryan Garner, an American lawyer who has written over 20 books about English, argues that a legal writer should get his point across quickly, stay focused on the argument, make it interesting, supply smooth transitions, and quote smartly and deftly. [1]

But whether writing objectively or persuasively, in either case, the legal document's structure remains the same. So then what's the difference?

An objective memo is concerned only with analyzing facts, not influenced by opinions or biases. In that sense, an objective memo is scientific: it lets the facts speak for themselves. On the other hand, a persuasive memo is intended to influence the reader to adopt a particular position on the issue. In a persuasive memo, the lawyer's goal is to use the facts to "color the judge's glasses."

In a legal memo, the lawyer by setting out the “Statement of Facts,” which establishes the facts for which the lawyer’s argument will rely. I'll use certain facts from a persuasive memo that I recently wrote to help illustrate how this is done. For context, here is a brief summary of the memorandum’s purpose:

“'Eyes on Government,' recently submitted a Freedom of Information Act request to the Secret Service to release certain documents. The Secret Service, through Special Agent Logan Otoya, sent a letter informing Eyes on Government that its request was denied. Eyes on Government filed a petition in a court of law to force Special Agent Logan Otoya to testify as to why he rejected Eyes on Government's request, before the military deployed him to Afghanistan.”

For the purpose of the law school exercise, I represented the Secret Service, and Special Agent Logan Otoya. The goal of the Statement of Facts section in a persuasive memo is not just to establish facts, but to establish persuasive facts, in a persuasive way. The following discussion will explain how I applied lessons from three experts in persuasion, to establish persuasive facts, persuasively, to argue that Eyes on Government’s petition to perpetuate Logan Otoya's testimony should be denied.

Where Authority Goes, People Follow

Robert B. Cialdini, author of “Influence,” argues that a powerful weapon of persuasion is authority. Cialdini refers to authority as “directed deference.” [2] Cialdini argues that the effect of authority (even if only perceived authority) is grossly underestimated. He argues authority works forcefully on us, but it does so subtly and unexpectedly. Most of us are raised to respect authority, both real and implied. But the trick is that sometimes people confuse the symbols of authority (titles, appearance, possessions) with true authoritative substance. That confusion can be exploited.

Eyes on Government had argued that perpetuating testimony was necessary because there was a risk that the testimony might be lost when Logan Otoya was deployed by the military to Afghanistan. I had to argue the opposite, that there was no risk of loss. Intuitively, when a person hears that a serviceman is deployed to a war zone, he expects that the serviceman risks death. But, don’t witnesses risk death everyday, from such mundane life events like driving a car?

Courts certainly don’t consider the risk of a witnesses death from car accidents when determining whether to perpetuate testimony. So why should they consider the risk of a witnesses death from a war zone, if the likelihood of death is exactly the same, or even less?

I used two authoritative entities to frame the petitioner’s risk of death argument as unpersuasive. The goal was to persuade the reader that a serviceman’s risk of death in Afghanistan is no greater than a the risk of death that a typical witness faces when he decides to walk down the street:

". . . according to iCasualties.org, a global authority on the “costs of war,” only 55 U.S. fatalities occurred in Afghanistan in 2014, and only one has occurred through April 2015. Over 68,000 individual troops were deployed in 2014, which represents a 0.05% fatality rate. [3] In contrast, according to FedStats, the United States Government Statistics Program, the likelihood that an American citizen dies while walking in the United States is greater than 0.05%." [4]

In this section of the Statement of Facts, I presented facts established by iCasualties.org and FedStats (both credible authoritative figures) to persuade the reader that, although counterintuitive, the risk of Logan Otoya's death was negligible. Notice how I didn’t make an argument. I didn't analyze the facts. I simply presented facts from two authoritative entities, with expertise in the subject matter.

Virgil famously said, “Where an expert goes, I follow.”

Association Programming

​Scott Adams argues that people, naturally social animals, are heavily influenced by their social networks. He calls this phenomenon “Association Programming.” In his book, “How to Fail at Almost Everything and Still Win Big,” Adams argues that humans don’t always know the mechanisms by which or reasons why others effect their decisions, but that it’s pretty clear that it happens. He makes the case that realizing this fact is important, especially because humans more often than not make decisions irrationally. Humans have an impulse to emulate the habits of others, especially those who are respected, and represent how you’d like to be. [5]

The Secret Service is a vital organization to the United States government. It's purpose is to protect the life of people at the highest levels of government. The Secret Servicemen volunteer their lives to meet this purpose. So, it's not surprising that American society has admiration for the institution. Judges, who form an integral part of one of three branches of American government, likely shares an admiration for the Secret Service and its mission. I used this premise, to apply Adams’ theory of Association Programming in my Statement of Facts:

“. . . The Secret Service’s mission is to ensure the security of the President, former Presidents, their families, and the White House. [6] On December 29, 2014, Eyes on Government sent a request to the Secret Service seeking records relating to visitors to the White House. The Secret Service, in upholding national security interests and its mission, has a lawful duty pursuant to the Presidential Records Act to keep these records confidential. 44 U.S.C. § 2201. Considering this, Special Agent Logan Otoya denied Eyes on Government's request."

The fact that the Secret Service protects the lives of former Presidents' families, is a fact that has absolutely no relevance at law. But it's a fact that earns the respect of the reader. From a certain perspective, both the judge reading the memo, and the Secret Service have a shared mission: to protect and preserve good governance in America. In this sense, judges in the judicial branch, and the Secret Service are closely associated.

Again, here, I didn't make an argument. I merely stated facts. If my premise is correct—that a judge is associated with the Secret Service in mission—then highlighting the Secret Service’s mission statement, and demonstrating that the Secret Service acted according to it, could persuade a judge through “Association Programming.”

Defeat Material Force With Moral Force

The Military Art of People’s War is a collection of the major writings of General Giap, who was a general in the Vietnam People’s Army during the Vietnam War. The evidence of his record, as well as his theoretical work, has long been recognized as one of military genius. The book includes writings from the 1940s to the end of the 1960s, and makes a principle argument that material force can be defeated by moral force.

In the context of my case, I attempted to establish the Secret Service decision-maker, Logan Otoya, as a moral force. If General Giap’s theory is correct, even when one side has an overwhelming material force, if the other side has moral conviction it can prevail. To increase Logan Otoya's moral authority, in every instance that I cited Otoya in the Statement of Facts, I used adjectives synonymous with noble or admirable, for instance:

Logan Otoya is the Special Agent in Charge, and Freedom of Information and Privacy Acts Officer for the Secret Service.

On January 14, 2015, the Secret Service, led by Special Agent Logan Otoya.

Special Agent Logan Otoya, who is an Army reservist, received notice on December 28, 2014, that the military will deploy him to Afghanistan on May 1, 2015.

Army Reservist Logan Otoya is scheduled to return from his deployment to defend America in Afghanistan.

Petitioner has insisted that a basis for its request to perpetuate Serviceman Logan Otoya’s testimony is a concern that he faces a risk of death.

Petitioner asserts that Special Agent Logan Otoya’s denial of Petitioner’s request was wrongful.

Serviceman Logan Otoya, in collaboration with other Secret Service agents, has already described the lawful authorities upon which it relied to make its rightful decision.

Each time I cited Logan Otoya, I used adjectives that generally enhanced Logan Otoya’s moral authority (ex. Army Reservist, Special Agent, Serviceman, etc.). I made no argument. I stated facts to enhance Logan Otoya’s moral authority. By enhancing his moral authority, a judge reviewing Logan Otoya’s decision could be persuaded to join the "moral force."

In both an objective and a persuasive memo, the lawyer is confined to a structured argument. It's the substance that sets the styles apart. Anyone with experience in writing memos can attest to the fact that shifting from objective writing to persuasive writing is more art than science. But in the American adversarial legal system, lawyer's must practice the art of persuasion. To persuade requires an understanding of human nature. Cialdini, Adams, and Giap, argue that humans are persuaded by authority, by peers, and by moral forces.

Clients seek to win, which, in the context of the law, requires the use of facts to persuade the other side to adopt your position on the issue at hand. But what facts to use? In a persuasive memo, the answer is simple: facts that persuade.

Citations

[1] Legal Writing in Plan English, Bryan A. Garner, Second Edition

[2] Influence, The Psychology of Persuasion, Robert B. Cialdini

[3] iCasualties, Afghanistan Coalition Military Fatalities by Year, http://icasualties.org, 2015

[4] The Economist, Danger of Death,

[5] “How to Fail at Almost Everything and Still Win Big,” Scott Adams

[6] The Secret Service, Mission Statement, http://www.secretservice.gov/mission.shtml, 2015