More than two thousand years ago, Aristotle identified ethos—credibility—as one of the three core components of persuasion (the other two are logos, logic, and pathos, emotional appeal). Because your goal when writing a brief is to persuade the court to rule in your client’s favor, it’s important to understand how to establish and maintain your credibility.
Accuracy in your presentation of both the facts and the law is the key to achieving this goal. In Making Your Case: the Art of Persuading Judges, co-authors Justice Antonin Scalia and Bryan Garner advise: “Never overstate your case. Be scrupulously accurate,” and also: “Err on the side of understatement, and flee hyperbole.” To allow the court to assess your credibility, every factual statement in a brief should be followed by a citation to the supporting evidence (in a trial court brief) or the record (in an appeal).
One technique that will help you avoid allegations of exaggeration or inaccuracy is to avoid characterizing the facts. Instead, lay out the objective facts in sufficient detail, allowing the court to characterize those facts in its own mind. So, for example, instead of calling a defendant’s acts “unfair,” describe the acts and let the court conclude that they are unfair. In a related vein, avoid using sensational or inflammatory language, which arouses skepticism and reduces your credibility.
Of course, your discussion of the law must also be accurate. Don’t omit material from a quotation in a way that materially changes the meaning of the resulting quote. When you do omit material from a quote, replace the omitted material with an ellipsis (…) or, where appropriate, “(citation omitted).” And, when discussing a case, make sure that you accurately describe both the facts and the holding.
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