THE ART OF DEEP PERSUASION

 There are plenty of books on the art of persuasion, going back to Aristotle.  In this column, I’ll discuss one aspect of this.  For want of a better term, I’ll call it The Art of Deep Persuasion.  Here’s the core of this concept. 

Most lawyers cite authority for their arguments and leave it at that.  They assume that’s good enough to persuade, because judges are supposed to follow “the law.”  Then, much to their surprise, they lose.  The judge distinguished the cited cases, or even ignored them, or twisted the facts, or found some other seemingly disingenuous way to rule the way she wanted to rule (often because she just didn’t like your client).

The lawyer is, of course, quite upset.  He rails (often to me, when I’m asked to handle the appeal) about “that biased jerk who won’t do her job of following the law.” 

Fine.  If it makes you feel better, rail.  But once you’ve calmed down, think about how you might prevent this from happening again.  

Try this.  Instead of assuming that the judge will blindly “follow the law,” dig deeper.  Persuade the judge that “the law” you cite is good.  Explain why the rule makes sense in general, and why it makes even better sense to apply it to your case.  “I shouldn’t have to do that!” you say.  Tough.  If you want to win, you need to do it. 

Here’s an example, from an appeal I argued, where I failed to dig deep when it could have mattered.  Though I did a terrific job of it later—in my head. 

 It was a class action, in federal court, against several producers who had conspired to fix prices.  The class of purchasers was nationwide, but the claims were based on the law of each state where some purchasers lived. 

Those laws varied, and a couple of states simply provided no remedy.  The plaintiffs’ lawyers tried hard to concoct claims for purchasers in those two states, but couldn’t come up with anything that had a chance of winning.  And they sought both purchasers and attorneys from those states who might represent the interests of those purchasers in the class action—but found no one willing to do so.

Then they settled with the defendants, for over half a billion dollars.  As part of the settlement, they released all claims—including those that the purchasers in those two no-recovery states might have.  Those purchasers would get no cut of the half billion. 

The parties moved the trial court to approve the settlement.  At the hearing on the motion, some “objectors” to the settlement argued that it was unfair—because it failed to compensate the purchasers from the two non-recovery states.  The plaintiffs’ lawyers then described their unsuccessful efforts to state a claim for the purchasers from the no-recovery states, and their unsuccessful efforts to find someone from those states to come into the case and represent the interests of those purchasers. 

The trial court approved the settlement.  The objectors appealed to the Ninth Circuit.  The plaintiffs’ attorneys brought me in to handle the oral argument. The objectors had raised many issues, and I had prepared thoroughly to deal with all of them—including the “no-recovery states” problem. 

At oral argument, the three Ninth Circuit justices cared about only the no-recovery states problem.  They framed it as a mistrust of the plaintiffs’ lead counsel: “Mr. Moskovitz, how can we trust plaintiffs’ lead counsel to make his best effort to represent the interest of those purchasers?  Wouldn’t he be inclined to sell out those people in order to get a larger recovery for the rest of the class—and a large attorney’s fee award for himself?  Didn’t he have a conflict of interest?” 

My response was right out of the books.  “Your honors, the standard of review applicable to this case is abuse of discretion. The cases hold that this court of appeal is supposed to defer to the district court’s ruling on approval of class action settlements, and reverse only if you find that the trial judge abused his discretion.  The trial judge heard the objectors’ arguments, plaintiffs’ counsel’s arguments, and found that plaintiffs’ counsel did all he could to protect the interests of those purchasers.  You should defer to that finding.”

Pretty good, right?  Something like what you would have argued? 

But not good enough.  Their Honors bought none of it, and came back at me again with their concerns about the integrity of plaintiffs’ lead counsel. 

A few weeks later, they issued their opinion, reversing the judgment, and directing the trial judge to reconsider the settlement in light of possible claims by the purchasers from no-recovery states.  

I boiled and stewed.  And I, together with plaintiffs’ counsel, exchanged railings at the appellate judges for ignoring the standard of review. I don’t like to lose, and I don’t often lose—especially when representing the respondent.  This one really hurt. 

I churned the scene over and over in my mind.  What might I have done at oral argument that had a chance of turning those guys around? 

Here’s what I finally came up with: instead of just reciting the standard of review, I should have gone deeper into rule, and explained why it was particularly appropriate to apply in this case.

Maybe something like this:

“Your Honors, please take a look around this courtroom, crowded with lawyers.  Which one is the lead plaintiffs’ counsel?  I suspect you don’t know.  But the district court judge would know him in a heartbeat.  Why?  Because the trial court judge was the one who appointed him lead counsel.  Because he was the one who dealt with counsel face-to-face in open court at 12 hearings, spanning 4 years and many hours in court.  Because he was the one who reviewed the briefs filed by that lawyer in this case.  And because he was the one who, after all that direct, hands-on experience with lead counsel, found that lead counsel had integrity, and that he honestly and diligently tried to protect the interests of the purchasers from the no-recovery states.  This case is a perfect example of why your standard of review is one of deference to the trial judge regarding whether to trust class counsel.  A trial judge knows counsel from repeated personal contact—knowledge that is not available to appellate judges who have nothing but a cold record in a single case to go on.” 

Would this have worked?  I don’t know, but I think it would have had a much better chance than my off-the-rack standard of review pitch. 

Judges are not automatons who robotically follow rules.  Judges are human, and they want to do justice. If they think a rule does not further justice in this case, they will seek a way around it.  So find a way to go deeper into the rule and explain why it should be applied to this case. 

It’s tough to do this for the first time at oral argument, where you’re on the spot and have to think quickly, and it’s especially difficult to turn around strong personalities who might have pretty much already made up their minds by the time oral argument rolls around.  So go deep in your briefs, where it really counts—before the judges tentatively decide the case.   

In sum, instead of skimming the surface, dig deep.  It might help you win.