By the Rules: Techniques for Writing Persuasive Rules

COLUMN > Write to Counsel

BY LAUREN E. SANCKEN

Whether you’re drafting an advocacy letter or brief to the court, it should be obvious from reading the legal rule sections which side you represent. Drafting persuasive legal rules, like all writing conventions, can be done well by minding some basic patterns. While no one formula exists for good advocacy, these techniques can help you frame persuasive rules in a way that favors your client’s position.

Frame Rules Positively or Negatively

If your client is advocating for a particular outcome, frame the legal rules to align with that outcome. This works for both procedural and substantive legal statements. For example, if you are writing to persuade the court to grant a motion for summary judgment, frame the summary judgment standard in terms of when the court must grant summary judgment. By contrast, if you are writing to oppose summary judgment, frame the rules in terms of when the court must deny summary judgment. Here’s how this might look:

Positively framed for the moving party: Summary judgment must be granted and the moving party entitled to judgment as a matter of law when there is no genuine issue of material fact. CR 56(c).
Negatively framed for the opposing party: Summary judgment must be denied when a genuine issue of material fact exists. CR 56(c).

Substantive legal rules can follow this same trajectory. For instance, in the fair use context, you might phrase rules for your side by framing around when a factor is met or not met:

Positively framed for party alleging fair use: The first factor, the “purpose and character of the use,” favors a finding of fair use where the allegedly infringing use is transformative and merely “incidentally commercial.” Seltzer v. Green Day, Inc., 725 F.3d 1170, 1177 (9th Cir. 2013).

Negatively framed for the party opposing fair use: Courts regularly find against fair use where the infringing use is commercial and only minimally transformative. Contra Seltzer v. Green Day, Inc., 725 F.3d 1170, 1177 (9th Cir. 2013).

These are all accurate statements of the law, but positively or negatively framing the rule helps to align the legal standard with the desired outcome.

Frame Rules Broadly or Narrowly

Rules can be presented more broadly or narrowly to give persuasive effect. In some cases, it might be advantageous to explain a standard in a broader, more abstract manner. In others, it will be beneficial to emphasize the narrowness of a legal principle. In this example from the parties’ briefs in Colvin v. Inslee, 195 Wn.2d 879, 467 P.3d 953 (2020)both sides quoted a statutory rule persuasively using this technique:

Broad framing: “The writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.” Petitioner’s Brief, Colvin v. Inslee, No. 98317-8,2020 WL 1955728, at *53 (April 6, 2020) (quoting RCW 7.16.170) (emphasis added).
Narrow framing: “Mandamus is available only if there is ‘not a plain, speedy and adequate remedy in the ordinary course of law.’” Respondent’s Brief, Colvin v. Inslee, No. SC983178,2020 WL 1953985, at *22 (April 13, 2020) (quoting RCW 7.16.170.4) (emphasis added).

In this case, the broad framing in the statute was advantageous to petitioners, so they quoted the statute directly. Respondents narrowed the principle by emphasizing a narrow condition, “only if,” and paraphrasing and selectively quoting the statute.

Quote and Paraphrase Persuasively to Emphasize Favorable Parts of a Rule

Designing a persuasive legal rule section is an act of curation. It requires stitching together a variety of statements from legal authorities and knowing when to selectively quote and when to paraphrase. Your credibility hinges on the accuracy of quoted and paraphrased information, so be sure to give enough context that the court can be confident that the law supports your position. You can be sure that the other side, or the judge, will investigate the accuracy of your rules, so avoid the embarrassment of getting it wrong or obscuring the truth. Generally, choose to quote favorable parts of a rule, when a binding court said it best, and paraphrase parts of a rule to construct a sentence logically or where you can say something with greater clarity. Here’s an example of an effective use of selective quotations in a criminal defendant’s appellant brief:

“The primary and most important component” of the Confrontation Clause “is the right to conduct a meaningful cross-examination of adverse witnesses.” State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Because limiting a defendant’s cross-examination calls into question the integrity of the fact-finding process, “the right to confront must be zealously guarded.” Darden, 145 Wn.2d at 620.¹.

You can be sure that the other side, or the judge, will investigate the accuracy of your rules, so avoid the embarrassment of getting it wrong or obscuring the truth.

The first sentence effectively stitches together these three rules from State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189, 1193 (2002):

“The right to confront and cross-examine adverse witnesses is guaranteed by both the federal and state constitutions.”
“In the constitutional sense, ‘confrontation’ means more than mere physical confrontation.”
“The primary and most important component is the right to conduct a meaningful cross-examination of adverse witnesses.”

The selective quoting helps draw attention to the favorable parts of the rule, and anyone who reads State v. Darden to verify the accuracy of the rules can see that the selective quoting tightens the meaning, without obscuring it.

Quoting is persuasive because it can help show that the law, in its most unadulterated form, is legitimately on your side. In fact, a recent empirical study by Professor Brian Larson suggests that winning briefs outpace losing briefs in three areas: use of quotations, examples and analogies, and policy arguments.² While using quotations does not guarantee success (and the study did not prove causation), using direct language from case law has tactical appeal because it lets the court speak for itself.

Build Persuasive Case Illustrations

Support your argument by choosing favorable case illustrations and contextualizing unfavorable cases. Favorable cases should be similar factually, legally, or policy-wise, and decided in the same way you hope the court will decide your case. Spend time showing the court why these cases are like yours. But don’t avoid unfavorable cases! Those cases will be picked up by the other side anyway, so it’s better to tell a coherent story of a case where the court’s ruling was unfavorable.³ In Morse v. Frederick, a 2007 Supreme Court case about whether school administrators could regulate a student’s off-campus speech,⁴. both sides—Principal Morse (the school administrator) and Joseph Frederick (the student) had to build an argument from the binding precedent of Tinker v. Des Moines Indep. Cmty. Sch. Dist.⁵ In Tinker, the Supreme Court famously held that the First Amendment protected students’ rights to wear black armbands to protest the Vietnam War on school grounds. Here’s how each side characterized Tinker:

Joseph Frederick’s brief: “In Tinker, this Court upheld the right of public school students to wear armbands protesting the Vietnam War. 393 U.S. at 514. At a time of profound student and political unrest throughout the country, the Court began its opinion in Tinker by observing that students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ Id. at 506. The Court acknowledged ‘the special characteristics of the school environment’ by permitting school officials to prohibit student speech if that speech ‘would substantially interfere with the work of the school or impinge upon the rights of other students.’ Id. at 509. But, the Court was equally conscious of the need to prevent that exception from swallowing the rule. Thus, the Court cautioned that, ‘in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.’” Id. at 508.

Principal Morse’s brief: “The framework for [the] student speech doctrine begins with Tinker. In that landmark case, the Court upheld the free speech rights of three students to wear anti-war armbands during the school day as a silent, passive political protest. 393 U.S. at 514. … At the same time, the Tinker majority recognized the unique characteristics of a public school and the unavoidable reality that administrators and teachers may suppress student speech, whether in class or out of it, that ‘intrudes upon the work of the schools or the rights of other students.’” Id. at 508.

Tinker is a good case for Frederick and the brief emphasized the broad right to freedom of speech and the importance of student protest during war time. However, the brief did not avoid talking about its limiting principle—that schools can regulate disruptive speech. But it highlighted that this narrow exception could not eclipse the protections of the First Amendment in the absence of real disturbance. Of course, Tinker is an unfavorable case for Principal Morse, but her brief does not hide or even sandwich the holding in Tinker. Instead, it highlighted that the protest in Tinker was silent and passive, and it focused on the rights of school administrators to regulate student speech that is disruptive to the school environment. By focusing on favorable aspects of the case and contextualizing unfavorable aspects, each side used Tinker persuasively.

Crafting persuasive legal rule statements is certainly an art, but it can also be a science. By using the basic techniques of framing a rule toward the outcome you want, quoting and paraphrasing favorably, and using case law—even unfavorable case law—persuasively, you can demonstrate that the rules are on your side.

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About the author

Lauren E. Sancken is an associate teaching professor and the co-director of the Legal Analysis, Research, and Writing Program at the University of Washington School of Law.

NOTES

1. See Appellant’s Brief, Washington v. Brown, Court of Appeals Div. III. No. 38493-4-III (May 6, 2022).

2. See David J.S. Ziff, “From Anecdata to Data on Writing a Winning Brief,” Wash. St. B. News, Jan. 2020-Dec. 2021, at 20-22 (summarizing research from Brian N. Larson, “Precedent as Rational Persuasion,” 25 Legal Writing: J. Legal Writing Inst. 135 (2021)), available at https://digitalcommons.law.uw.edu/faculty-articles/619/.

3. For an in-depth discussion of this topic, please see Davis J.S. Ziff, “There Is No Such Thing as a ‘Bad’ Case,” NWLawyer, July-Aug. 2019, at 17-19, available at https://digitalcommons.law.uw.edu/faculty-articles/618/.

4. Morse v. Frederick, 127 S. Ct. 2618 (2007).

5. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).