LawProse Lesson #170: Why does it matter how you state a legal issue?
Why does it matter how you state a legal issue? It matters in the most fundamental way: it can determine whether you win or lose. It’s the most important aspect of a lawsuit. Bryan Garner, author of The Winning Brief, has been called the preeminent expert on issue-framing. He teaches lawyers to fashion appealing issues and powerful arguments — without any hint of denigrating the opposing side. Although language is infinitely flexible, most lawyers tend to think in monochromatic ways. They find one way to state an issue and go no further. Most often, that framing is either so bare-boned and abstract as to be meaningless, or so syntactically convoluted as to be incomprehensible. There are dozens of ways to state a legal issue. To be effective, you must target your audience precisely: you must state the issue in a fair way that lures the court to agree with your premises. Some will say that’s hardly possible. But Garner shows otherwise in his Winning Brief seminar. How many times have you heard this? “When I sat there listening to the court’s response, I realized we hadn’t presented the issue properly — and that if we’d done it differently we might’ve stood a chance. As it was, the court didn’t even really hear us.” Even mediocre lawyers know the law, but the best ones communicate it superbly. That’s why they’re the best. Many lawyers lose sight of what true advocacy is. How we use this marvelous language is crucial to arguing effectively. If you’re willing to learn from an acknowledged expert, and you’re willing to try a new technique or two, come see us at this summer’s Winning Brief seminars. Bring your colleagues — and hope you don’t see your adversaries there. Thanks to Anthony Guidice for the idea for this lesson.