Tag Archives: advocacy

Brain Pickings, Arthur Quiller-Couch, & Writing

First, if you don’t subscribe to Brain Pickings, you really should. Along with Farnum Street, it’s one of the best sources of informed thinking, art, and inspiration on the web. (In fact, its much better about the arts than Farnum Street.) Among other regular topics, writing is a frequent concern. In particular, this post recounts and quotes the work of early 20th century writing guru Arthur Quiller-Couch, author of the book On the Art of Writing. Read Brain Pickings blogger Maria Popova’s full account of this book, but allow me to quote just a bit from it now. This goes to the issue of persuasion and its role in life. Read these words carefully. Quiller-Couch writes:

Persuasiveness … embraces the whole — not only the qualities of propriety, perspicuity, accuracy … but many another, such as harmony, order, sublimity, beauty of diction; all in short that — writing being an art, not a science, and therefore so personal a thing — may be summed up under the word Charm. Who, at any rate, does not seek after Persuasion? It is the aim of all the arts and, I suppose, of all exposition of the sciences; nay, of all useful exchange of converse in our daily life. It is what Velasquez attempts in a picture, Euclid in a proposition, the Prime Minister at the Treasury box, the journalist in a leading article, our Vicar in his sermon. Persuasion, as Matthew Arnold once said, is the only true intellectual process. The mere cult of it occupied many of the best intellects of the ancients, such as Longinus and Quintilian, whose writings have been preserved to us just because they were prized. Nor can I imagine an earthly gift more covetable by you … than that of persuading your fellows to listen to your views and attend to what you have at heart.

If you’re a lawyer, or just an everyday advocate, you should head these words–no, you should drink  them into your very being. Whether in written or spoken form, what we do is a matter of persuasion, of seeking to guide change, and the more we come to master and expand the art of language, the better off we shall become in shaping the world around us. Take heed and govern yourselves accordingly.

How to Lose an Appeal from Judge Kozinski

Below is a link to a law review article. Normally, I’m not out to punish readers, so you may ask why I have included a law review article. Fair enough. I have done so because it’s a tongue-in-cheek article written by 9th Circuit Judge Alex Kozinski. Its topic is straight forward: how to lose an appeal. Kozinski focuses on the two tools available in an appeal: the brief and (if you get it) oral argument. Kozinski even points out that the ability to lose an appeal allowed LBJ to win an election and for Abe Fortas, the author of the losing brief, to gain a seat on the U.S. Supreme Court. Any guesses about who appointed Fortas? Anyway, the article is a bit dated (1992), but only because it’s from before the era of word count limitations made possible by word processing software. Otherwise, I think that the advice is timeless. Enjoy.

Kozinski The Wrong Stuff


Rome & Rhetoric & Us

We lawyers are a wordy lot. As our culture changes, under the influence of movies, television, the internet, we shift more and more to a culture of images rather than of words. We lawyers may have to trim our enthusiasm for words. Yet, for now, they remain our stock-in-trade. To this extent, we have few betters guides to the persuasive use of words than Shakespeare and Classical rhetoric, especially via the mind of a master writer like Garry Wills.

In a sense, the Funeral Orations from Julius Caesar are like a trial, although not couched in that format. The jury is the crowd, and both Brutus and Antony must woo them to their judgments. Are we so different? The fiction notwithstanding, I suggest that we have some important lessons to learn here.

Rome & Rhetoric coverGarry Wills has struck again, this time with his book Rome and Rhetoric: Shakespeare’s Julius Caesar. In this slender volume Wills explores how Shakespeare, via Plutarch, grasped the essence of Rome at the time of the transition from republic to empire. Specifically, Wills explores the rhetoric of the leading characters. Of course, Antony’s funeral oration is the best known of the set pieces in this play. (My continued apologies to Mrs. Vaughn for having complained about having to memorize this in sophomore English class). However, Antony’s funeral oration is not the only example of rhetoric in the play. Before Antony speaks, Brutus addressed the crowd. Wills contrasts the rhetoric of Brutus, which centers upon “mine honor”, against the more nuanced speech given by Antony. Antony responds to his audience, whereas Brutus expects his audience to respond to him.

Wills’ love of Shakespeare is not new. His previous book on Macbeth demonstrates the care with which has explicates these texts. In addition, he has recently published a book on Shakespeare and Verdi, the great Italian opera composer who composed operas on some of Shakespeare’s plays. I haven’t read that book yet, but I have a hard time imagining that it could be better than this book. Wills is trained as a classicist, and the opportunity to merge his love of theater (and Shakespeare in particular), along with his classical learning, provides us a real treat in humanistic learning.

I always enjoyed Julius Caesar (my complaints and sophomore English notwithstanding), and I think that it is an easily accessible play. In addition, there are a couple of good film productions of it that are well worth seeing, including one with Marlon Brando as Anthony. If you have an opportunity to see these productions or to read this play, Wills’ book would be an excellent introduction and perspective on the play.

David & Goliath by Malcolm Gladwell: Strategy for Underdogs

This review that I wrote earlier qualifies here for at least two reasons:

  • It deals with conflict, and like it or not, we all engage in conflicts daily. For lawyers, any lawsuit, from a breach of contract to a dissolution of marriage to a personal injury claim, involves conflict. We all have to consider our relative powers,  abilities, and weaknesses. How can the underdog change the game, take advantage of a weakness, or alter the playing field? Gladwell addresses these issues.
  • Gladwell features a chapter on David Boies, one of the premier litigators in the U.S. Boies “secret” is simple yet profound.

Let me ask you a series of questions:

Can a team with only mediocre offensive skills and limited physical gifts regularly beat teams that are more talented?

Are larger classes sometimes better for learning than smaller ones?

Might an accomplished young woman interested in science find career success by attending a state university instead of the Ivy League school that admitted her?

Might a guy with dyslexia (a serious disorder that affects reading ability) do well in a legal career?

Can a physician with a very troubled youth develop a breakthrough protocol for treating a fatal childhood disease by ignoring colleagues and forcing patients (and parents) to push through the pain?

Can an oppressed minority gain rights and dignity through tricking the oppressor into dumb moves?

Can the campaign of a heart-broken father to limit crime after the murder of his daughter backfire into promoting more crime?

Can forgiveness provide a stable and fulfilling way of responding to horrific loss?

Can a small group of dissenters thumb their noses at Vichy and Nazi officials and openly harbor Jews, saving them from internment and death?

Can David beat Goliath?

If you’ve ever read any Malcolm Gladwell, you will know that the counter-intuitive answers to some of these questions are Gladwell’s answers. Gladwell opens his latest book, David and Goliath: Underdogs, Misfits and the Art of Battling Giants by explaining how David’s victory over Goliath was not so great an upset as we’ve come to believe. David, as an expert with the sling (not an unusual talent in that time), held a real advantage over the armor-clad, pituitary case (Goliath) that he faced. Like the game of rock-scissors-paper, each strategy entails an effective counter-strategy. So a girls basketball team, coached by an Indian immigrant father with no basketball experience, used the unorthodox strategy of an aggressive full-court press to win games and go the national tournament. (Gladwell journeys into basketball lore to describe the education of Rick Pitino about the value of the press. I must add that the press is under-utilized still. I loved it.) If you don’t have rocks, use paper

As Gladwell often does in his writing, he weaves insights from social science into real life tales, and in doing so, he challenges the easy assumptions we tend to make. In two segments involving education, he challenges a couple of common assumptions, assumptions that cost a lot of money and that have very serious repercussions. First, he explores the assumption that smaller class size always improves student achievement. Gladwell finds that class size, like many things in life, has a sweet spot—a Goldilocks point—that is neither too large nor too small. In smaller classes, there may not be enough variety to facilitate a desired give-and-take for discussion and projects. Thus, the class never reaches its full learning potential. Gladwell concludes (and I intuitively agree) that outstanding teachers are the key to educational success, not simply more teachers. Rather than paying outstanding, experienced teachers to retire early to hire some additional new, untested teachers, we should work to keep outstanding teachers working as long as possible. (Yes, I’m thinking of C, for an example, although she’s still working.)

Another very interesting point involving education addresses the issue of college choice. Gladwell uses the instance of a young high-school student interested in science who goes to Brown (an Ivy) rather that her home-state University of Maryland. Because of the intense competition and high-skills range, Gladwell’s young woman abandons science as her major. She tried to make it as a big fish in a big pond, but as statistics show, this is tough. Those who succeed tend to be those who succeed in comparison to their peers in a particular environment, whether at State U or an Ivy League college. For young people making excruciating decisions about where to go to study or where to go to continue playing a sport, this is vital information. (Of course, the Ivy League works well for some, as I know a couple of Ivy League grads whom I think have done quite well.

Another tale that interested me especially was that of David Boies, one of the premier trial and appellate lawyers in the nation. Boies has dyslexia, which makes reading very difficult. To compensate, he learned to learn by listening—listening very carefully. Boies didn’t go to college until a bit later in life. He ended up graduating from Yale Law. (I guess his Ivy League choice worked out okay, too.) One strategy he used in law school was to read the synopsis of a case rather than a whole opinion (a lesson there, I think). And he listened—very carefully. (I suspect that careful listening is a skill that most of us, including lawyers—or especially lawyers?—too often fail to practice.) Boies chose litigation as a field because it didn’t require as much reading as corporate law would have. (Still, there’s still plenty to read in litigation.) Interestingly, unlike most lawyers, Bois doesn’t read for pleasure, either, reporting that he only reads about a book a year. Boies learned to compensate for his disadvantage and by doing so, cultivated skills that allowed him to rise to the top of his field.

From the list of questions at the beginning of my review, you can discern some of the other topics Gladwell addresses. Gladwell has mastered this genre. Gladwell, along with Michael Lewis, Daniel Pink, and a few others, has learned how to weave nonfiction narrative into social scientific insights in a manner that is both instructive and entertaining. Gladwell’s counter-intuitive insights and arguments challenge us to consider what things may not work the way that we easily assume they do.

To Move the World by Jeffrey Sachs

I’m including a recently written review of this book because the book addresses the importance of rhetoric–the power of words. As we note the 50th anniversary of JFK’s assassination, it’s important to look behind the trauma to what he did and said in his limited time. I believe what he said–and how well he said it–amounts to more than his actual accomplishments (his handling of the Cuban Missile Crisis provides the crucial exception). Our words count, too, so we can can benefit from this reflection.

In this book well-known economist and public intellectual Jeffrey Sachs moves from the world of economic development and environmental concerns to an examination of how John F. Kennedy’s thought and rhetoric changed the dynamics of the Cold War and the Civil Rights Movement. Sachs apparently came to this project through his friendship with Theodore Sorensen, Kennedy’s primary speechwriter. Also, I suspect that Sachs came to the project because of his own quest to alter the dynamics of thought and action about global poverty, sustainable economic development, and ecological stewardship. In this book Sachs doesn’t break any new historical ground. His main concern is to examine how the interplay of experience and rhetoric shaped the course of events both before and after the Kennedy administration.

 Sachs notes that Kennedy had some important role models for his rhetoric and perceptions. First and foremost among these role models was Winston Churchill. However, his model was not simply the pugnacious Churchill of 1940 who defied the Nazis, but also the postwar Churchill, who, while warning of the spread of communism, also spoke in favor of peaceful talks. Perhaps in Churchill’s less eloquent but most apt words, more “jaw-jaw” and less “war-war”. This attitude of conciliation was carried forward by Dwight Eisenhower. Sachs notes a couple of Ike’s speeches that struck a conciliatory note and that appreciated the dangerous dynamics that were developing between the US and the USSR. The most famous of Ike’s speeches was his farewell speech, which Sachs describes is only one of two presidential farewell speeches that bears remembering (the other was George Washington’s). In Ike’s farewell speech, he warned of – indeed I think coined the phrase – “the military industrial complex”. Ike understood that there were strong pressures in the US (and certainly within the USSR as well) that pushed for military confrontation as a part of a profit and power seeking engine driven by defense contractors and the military. Roughly contemporary with Kennedy’s time in office was the papacy of Pope John XXIII, whose encyclical Pacem In Terris (Peace on Earth) provided another eloquent voice speaking out in favor of peace and justice. Kennedy was thus not alone on his perceptions and hopes, and he carried forward a line of predecessors and contemporaries from whom he could gain wisdom and assistance.

 Sachs doesn’t dodge the fact that Kennedy made the Cold War worse by the fiasco of the Bay of Pigs invasion that occurred shortly after he took office. In another one of history’s “what if’s”, historians of wondered if Ike would’ve had the good sense to have pulled the plug on the Bay of Pigs invasion, or whether he would have gone whole hog with the invasion. Kennedy chose halfway measures that embarrassed the US, made Castro more belligerent, and that suggested to the USSR that some further intervention on behalf of their Cuban comrades was necessary. Sachs details how Khrushchev developed his harebrained scheme to put offensive missiles in Cuba with the thought of revealing a fait accompli at a party Congress scheduled in late 1962 (shades of Dr. Strangelove here). This scheme led to the Cuban missile crisis, where humankind came within an eyelash of worldwide catastrophe. Credit goes to both Kennedy and Khrushchev for avoiding a nuclear Armageddon by backing away from the demands of hardliners. Kennedy had to deal with Air Force Chief of Staff Curtis LeMay (the model for Stanley Kubrick’s general Jack Ripper in Dr. Strangelove). Khrushchev obviously had his own people to deal with as well.

 After this harrowing experience, Kennedy chartered a new course to try to ease the tensions of the Cold War. His renewed concerns with this subject  eventually led to his June 1963 speech at American University that has since been dubbed “The Peace Speech”. Kennedy laid out the need for renewed efforts to avoid war, efforts that were neither naïve nor impossible to achieve. This included a voluntary suspension of nuclear testing so long as no other nation engaged in tests of their own. Kennedy followed up the next day with a major speech on civil rights where, I believe for the first time, he described the civil rights movement in terms of a moral imperative. These two speeches, perhaps more than his better-known inaugural address, highlight of Kennedys’ rhetorical gifts and moral vision.

 Sachs does a good job of carefully examining Kennedy’s rhetoric. For instance, Sachs shows how effectively Kennedy used the rhetorical device of antimetabole, the Greek term referring to the repetition of words in transposed order (e.g., “Ask not what your country can do for you—ask what you can do for your country.”) A great deal of credit for Kennedy’s rhetorical success goes to his aid Ted Sorensen, who wrote the first drafts and worked revisions in tandem with Kennedy. As a team, it will come up with signature ways of speaking and arguing that proved eloquent and effective. Kennedy was able to get the Soviet Union to the bargaining table, the parties agreed to a partial nuclear test ban treaty (underground testing was still allowed), and, most notably by the standards of today, he was able to get overwhelming Senate approval for the treaty. This was one of the highlights of Kennedy’s congressional efforts. As we know, no civil rights legislation and no economic stimulus bill were enacted until after Lyndon Johnson became president and oversaw those efforts. While Kennedy’s rhetorical gifts are undoubted, I still have the sense that without Johnson, the major civil rights legislation and perhaps even the economic stimulus Kennedy sought would have been sidetracked by Congress. As we know from our experience with President Obama, formal rhetoric that artfully and clearly sets forth a vision for possibilities is important, but not sufficient to effect real change. The trench warfare of congressional approval is also necessary to translate positive visions into law. Nevertheless, one can’t leave this book without appreciating the skilled vision that Kennedy and Sorensen set forth.

 Sachs spends a little bit more time on the post-Kennedy Cold War, and especially noteworthy is the period in the early and mid-1980s when Ronald Reagan and the hard core Republican right wing adapted an extremely confrontational attitude toward the Soviet Union. This attitude was perceived by the Soviet leadership and reciprocated. In hindsight, the Nixon-Ford-Kissinger efforts for détente are much more rational and reasonable. Reagan supporters argue that Reagan’s rhetorical and military build-up in confrontation with the Soviet Union led to the downfall of the Eastern block and eventually the Soviet Union. But this argument should be subject to a lot of skepticism and should be rejected without a more persuasive argument made through a careful historical analysis than I’ve yet seen. The fact is, the doomsday clock that measured the threat to human well-being crated by nuclear war (now I think subject to other factors, such as ecological catastrophe) moved up very close to midnight again during a period in the 1980’s. However, once Reagan perceived a change in Soviet attitudes in the person of Gorbachev, Reagan’s very effective rhetoric changed into one of conciliation and the need for rational consideration of the parties’ mutual need to avoid nuclear war and threatening confrontations. Neither Kennedy nor later Reagan dropped his strong stance of anti-Communism, but both came around to a much more sensible position. (Kennedy was more constrained by the extreme political right wing than was Reagan, who, like Nixon going to China, had a degree of credibility for a changed attitude toward the USSR that no Democrat could gain in order to achieve the changes the Reagan fostered.)

 In my continued reading reflecting back on the presidency of John F. Kennedy, this book was a worthwhile addition. I thought it might be an exercise in hagiography, but instead, I found it a measured consideration of Kennedy and the importance of his and his predecessor’s rhetoric in defining the conflicts of the Cold War and thereby limiting the potential for a nuclear war. Perhaps because of my primal Republican background, I’ve never been an unabashed Kennedy admirer. His record was mixed, but I have gained a sense that the man grew during the course of his presidency and that the tragedy of his assassination did rob the world of his potential. Would he have avoided the deep entanglement of the Vietnam War? Would he have been able to forward the program of civil rights as effectively as did Lyndon Johnson? Would changes brought about by the initial efforts in diffusing the largest tensions of the Cold War have continued? All these “what if?” questions remain as tantalizing possibilities that will never receive a definitive answer. The only sure thing is the actual past; the future—or alternative futures—are marked by uncertainty. So with Kennedy. We should examine carefully his accomplishments, his failures, and the gifts he left behind, which though all too few, are nonetheless significant. Sachs performs an important service in this book by acknowledging that heritage and challenging us to find similar instances where we can understand and improve our world through our rhetoric and politics.

Story Craft: The Complete Guide to Writing Narrative Nonfiction by Jack Hart

This is a review (newly edited) that I posted a while ago on my older blog, which has served as my “go to” blog since I began blogging. I have some relevant materials there that I’ll share here as well. I believe that the contents of my original blog will explain why I think that it’s relevant to this blog. For a comparison, look at this review from Legal Communication & Rhetoric: JALWD.

The art of telling an effective story, whether as a matter of fiction or of non-fiction, has become increasingly celebrated and promoted as the most effective means of communicating a message. Wherever we turn for advice about communicating effectively, we are told about the power of story or narrative (if you prefer the more hifalutin term). The reasoning is simple: we seem programed to remember stories that are tales across time involving characters who engage us in their quests.

Jack Hart is a professional journalist who describes the skills needed to write an effective non-fiction story for a newspaper or magazine. The book provides a number of tips and explanations about how good stories come to be written. But he also includes consideration of the usefulness of communicating other than by narrative, such as by explanation. However, the stories that Hart’s colleagues have written on a wide variety of topics have enhanced their effectiveness (and one assumes their readership) by use of a strong narrative line. The elements, when you reflect upon them, seem almost self-evident: characters (persons that we can care about and understand), a conflict or obstacle that present the characters a challenge, change through time (a narrative arc), and a well-researched facts. Like lawyers, journalists have a professional ethical obligation to “tell the truth”, as problematic has that statement always is. Both professions require us to ground our narrative in some sense in “what really happened”, perhaps easier for journalists because they don’t (or least shouldn’t) work for self-interested clients. One of the points that Hart rightfully addresses includes the ethics of required for appropriate truth telling.

Who might enjoy this book? Anyone who might want to tell a story, fiction, or non-fiction. (In truth, the fundamentals are not so different and Hart draws in a number of sources that originally addressed issues of fiction and play writing.) However, I read it from the point of view of a lawyer, an attorney, an advocate. I’m convinced more and more that our first job as an advocate is to learn and then tell our clients’ stories in a comprehensible and engaging manner. In some cases the law may prove an insurmountable road block to a remedy, but in most cases, especially any case that requires a trial or hearing to resolve the issues, telling the clients story, and thereby making the client and the client’s plight as sympathetic as possible, is the most important aspect of representation. Lawyers don’t write essays about “why my client should win” in “25 words or less”, but our briefs come close to allowing us to do that (and considering the “25 words or less” isn’t a bad idea either). As advocates, attorneys need to become as literate in telling a story as we are in forming an argument (which, of course, may incorporate storytelling). We especially face issues with younger jurors and lawyers who have a more native mastery of visual storytelling that older, logocentric lawyers like me lack. If the book has one weakness, it’s that it is limited to telling stories through the written word. Oral and visual storytelling must gain a place in the advocate’s arsenal as well as the use of the more traditional written word.

A fine book, well considered and well written (not for the most part in storytelling mode, I might add) that most anyone with curiosity about this topic would enjoy.


What Is “The Persuasive Life”?

Atticus Finch didn't win the batter, but he helped win the war for civil rights. His character represents the ideals of the lawyer-advocate.
Atticus Finch didn’t win the battle, but he helped win the war for civil rights. His character represents the ideals of the lawyer-advocate.

“The Persuasive Life” is a new blog that intends to address issues of persuasion, advocacy, lawyers, and the law. It reflects my interests, both personal and professional. Each individual life exists in a sea of relationships, and the attendant persuasion—understood in the broadest terms— the we exercise defines the quality of each life. From this very global, even metaphysical, perspective, I intend to range down into the particulars of the law in which I’ve practiced for over 34 years. I hope to cover all of the in-between as well. I intend this blog to benefit anyone who cares to read it, lawyer or not. It should benefit anyone because I believe that the quality of our lives arises from our ability to relate, to communicate, to persuade, and to be persuaded by, others.

The content of the blog will include both my writing as well as other sources that I find pertinent to these very broad topics. For those pieces that I import from elsewhere, such as from other blogs, I intend to write an introductory paragraph explaining why I think the information is useful. Indeed, I will be digging back to some of my older book reviews and blog posts to obtain material for this blog.

Since leaving the active practice of law about 14 months ago, I’ve had the time and the occasion to think about lawyering and legal advocacy. I was fortunate that in October 2012 Mind Merchants LPO of Jaipur India and I discovered each other. Consequently, I became involved in www.thelegaltaxi.com, a flat fee, pay-per-use legal research site. From the design of the website to the training of the staff to the production of actual research memos, I played an active role. I especially benefited from the opportunity to work with young Indian lawyers and train them in the ways of American lawyers. This gave me a lot of reason to think about legal writing, legal research, and persuasion in general. Indeed, my brief stint as a legal writing teacher for them (which I continue as a consultant and quality control manager for The Legal Taxi), spurred me to review and improve my own legal writing, teaching, and communication abilities.

For lawyers, I wish I could tell you I won every case and prevailed in every appeal. I didn’t. I can also tell you that now over a year of away from the active practice, during bouts of insomnia or jet lag, I don’t ponder the cases I won. I keep retrying and re-arguing the ones I lost. While this is futile in the obvious sense, there is some value in it. Such occasions prompt me to consider how I could’ve presented a better case and gained a favorable ruling. I tried not to take cases that I didn’t think my clients and I should and could win. (I consider representation a joint venture between lawyer and client.) In those cases when we weren’t successful, I believe I can benefit from contemplating what we could have done differently. I hope that through this blog and through my new venture to offer my legal writing and consulting services to other lawyers, I can bring some benefit to my fellow lawyers and other advocates that I have gained through my school of hard knocks and reflection.

I’m publishing this blog as a part of my work as a freelance lawyer for legal drafting and case preparation. I think of it as my personal CLE course, for which I can only receive credit from you, the reader. I hope that you share my enthusiasm.

I welcome your comments and suggestions for the blog. I read a lot, and my wife has chided me about sharing what I learn. My blogging career to date (here and here) has been an effort to respond to that challenge, as well as my Twitter account. This new blog, I hope, will further that project.

Without further do, then, let us explore and create the persuasive life.