11.2 HOW NOT TO PERSUADE

The first and most important point to make is that persuasion is not about lying. There are two reasons not to misstate the facts or the law in your case. The first reason is simply because it is wrong.

Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel....

Furthermore, Rule 46(c) of the Federal Rules of Appellate Procedure allows a court of appeals to discipline attorneys for “for failure to comply with any court rule,” and the local rules of many courts specifically prohibit misrepresenting the law or the facts. Likewise, Rule 11(b) of the Federal Rules of Civil Procedure provides that when an attorney presents a motion, a brief, or any other document to a court, the attorney gives several assurances about the brief, including the following:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; [and] (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Courts will sanction counsel for misrepresentations of law and of fact.¹

The second reason not to lie to the court is that it hurts your credibility. After an academic life filled with anonymous grading, many law students forget that the practice of law is not anonymous.

Judge Saufley of the Maine Supreme Judicial Court warns attorneys not to “squander” their credibility: Do not ever misquote cases or the record. Be absolutely vigilant about such practices in your office. Failure to do so may lose much for your clients and your reputation. It is never worth it.⁴

Another “persuasive” tactic that usually fails is an attack on opposing counsel or the judges in the court(s) below. Because law students do not usually fall into this trap, given their hypothetical cases and clients, law school may be the best time to learn that judges are not persuaded by ad hominem arguments. Judge Pregerson notes that attorneys injure themselves and their clients’ cases if they “vilify or belittle [their] opponents.... A shrill tone in a brief diminishes its persuasive force.”⁵ Judge Saufley worries that too many attorneys rely on the old adage: “If the law is with you, argue the law; if the facts are with you, argue the facts; if neither is with you, call the other guy names.” She points out that name-calling has a negative impact on the brief writer: “As soon as I see an attack of any kind on the other party, opposing counsel, or the trial judge, I begin to discount the merits of the argument.”⁶Supreme Court Justice Ruth Bader Ginsburg notes that a “top-quality brief” “scratches put-downs and indignant remarks about one’s adversary or the first instance decision-maker” because they will “more likely annoy than make points with the bench.”⁷ Persuasion is a subtle art. It consists of creating an image of yourself as a competent, credible, helpful, reliable advocate — the kind of person whose brief the court can’t wait to read. It also consists of taking advantage of opportunities at every stage of the brief-writing process to highlight your strengths and “low-light” your weaknesses.