“Remember this: the facts always drive the law.” It has been about two decades since my first mentor, a giant of the appellate bar in New York, imparted this sage advice as he mercilessly applied his red pencil — yes, we still used red pencils for editing in the early ‘90s — to the pathetic excuse for an opening brief resting on his desk. What he meant was that, while my draft was admirably saturated with sound legal arguments for vacating the judgment, I had failed to tell the story. To be sure, I had included a Statement of Facts, but it was merely a recitation of information — enough to cause the reader to fall asleep, perhaps, but hardly adequate to achieve the aim of overturning a homicide conviction.
Some lessons stick. It will come as little surprise to anyone familiar with my legal writing today that I find the use of storytelling — a pathos based writing style that places significant emphasis on imparting the story of the case — to be the most effective method of persuasion in an appellate brief. In my view, although a brief that is devoid of a cogent legal argument is inherently unpersuasive, the Statement of Facts is the most important component of the submission precisely because it affords the author the opportunity to furnish the reader with what is most likely to influence his or her decision, the story.
Until recently, one could only speak anecdotally about this topic. The persuasive impact of context driven briefs had gone unstudied — at least in any scientifically-defensible way. Which is why I was gratified when professor Kenneth Chestek of the Indiana University School of Law published an article on the subject a few years back. Not long ago, Chestek conducted a research study to test the hypotheses that “(1) in general, a brief that included a strand of story reasoning would be more persuasive than a pure logos argument, and (2) this effect would be more pronounced if the brief-writer had a ‘hard case’ to make.” K. Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. Ass’n Legal Writing Directors 1 (2010).
In a nutshell, Chestek tested his hypotheses by assembling a group of appellate judges, staff attorneys, lawyers, law clerks and law professors from across the United States — originally 175 participants in total. The participants were asked to read and evaluate the persuasiveness of two test briefs for each of the opposing parties in a hypothetical appeal. One of the two briefs for each side was purely logos-based, while the other was context-driven in the sense that it placed much greater emphasis on imparting the story of the case.
The results of the study validated Chestek’s first hypothesis. 64 percent of the 95 participants who ultimately reviewed and scored the test briefs reported that the context-driven briefs were more persuasive than the logos-based briefs. What was at least equally interesting about the results of the study was that a whopping 73 percent of those participants with the most experience in their job — 15 years or greater — found the briefs that employed storytelling to be more persuasive than the logos-based briefs. By contrast, those with less experience — mostly law clerks — were almost evenly split about which of the two test briefs for each side was more persuasive. Parenthetically, the second of Chestek’s hypotheses was disproven: “Storytelling works in all cases, not just hard ones.”
But storytelling will only work if there is a story to tell. In this respect, the trial lawyer plays a critical role. The appellate lawyer’s opportunity to tell the story on appeal is not dependent on his or her writing skills alone. Without a robust trial court record from which to draw, the preparation of a powerful, context-driven brief on appeal is virtually impossible. Put another way, the potential persuasiveness of an appellate brief is largely dependent on the trial lawyer’s diligence in ensuring that the story of the case is enshrined in the record, i.e., witness affidavits, trial testimony, and other evidence. If there is no support for a factual assertion in the trial court record, the assertion has no place in an appellate brief.
A word of caution. While a context-driven brief can be an effective tool on appeal, it is inappropriate to load it up with facts that are irrelevant to the case, to mischaracterize the facts in the record, or to appeal in an overt manner to the reader’s emotions. An experienced appellate attorney knows how to draw the correct balance — to present the facts accurately and objectively but as a compelling narrative carefully crafted to move the reader to favor the client’s position.