Using emotion in the statement of facts
According to the classical rhetoricians, you should use rhetorical devices and linguistic tricks to both please the judge by the elegance of your speech, and also move him emotionally to favour your case.
“There is no portion of an argument where the judge is more attentive and consequently nothing that is well said is lost. And the judge is, for some reason or other, all the more ready to accept what charms his ear and is lured by pleasure to belief”1.
Quintilian had a ready answer for those who argued that there should be no appeal to the emotions in the statement of facts. He said:
“I am surprised at those who hold there should be no appeal to the emotions in the statement of facts...Why, while I am instructing the judge, should I refuse to move him as well? Why should I not, if it’s possible, obtain that effect at the very opening of the case which I am anxious to secure at its conclusion, more especially in view of the fact that I shall find the judge far more amenable to the cogency of my proof, if I have previously filled his mind with anger or pity?”2
Quintilian also emphasized the emotional connections between the statement of facts and the closing argument:
“If you wait for the closing argument or conclusion to stir your hearer’s emotions over circumstances which you have recorded unmoved in your statement of facts, your appeal will come too late. The judge is already familiar with them and hears their mention without turning a hair, since he was unstirred when they were first recounted to him. Once the habit of mind is formed it is hard to change it”3.
In William Rose’s book “Pleadings without tears”4 he asks:
“What is the point of elegant drafting? After all, so long as I have made myself clear, why should style be of any relevance? The answer can be summed up in one word – authority.
Assuming a basic legal competence, the most important additional attribute that will distinguish good drafting (or advocacy for that matter) from the mundane, is authority. To be able to stamp your mark on the case, pick it up by the scruff of the neck, dictate the action, and essentially to show yourself to the Court to be in command and the master of your subject, gives you an incalculable advantage over your opponent. For a start, and have no doubt about this whatsoever, it shows! You opponent will know, the Judge will know, and if you are at the Bar, the solicitor will know. In terms of prestige and sheer psychological “clout” you are ahead. Don’t be mistaken; these things matter...I know from personal experience the effect that a well drafted statement of case can have on an opponent. In the course of many years in the profession, I confess invariably to a tightening of the stomach when I was confronted with a piece of work drafted by someone who clearly knew what he or she was doing.5
By working on your linguistic and rhetorical skills in parallel with gaining court experience, you will learn to draft elegantly, with style. Make sure that it is your drafting that is causing your opponent’s stomach to tighten, not the other way around. According to the classical legal rhetoricians, the statement of case is a good place to demonstrate those skills, although be careful to do so with subtlety. You are aiming for elegant touches, rather than over the top language throughout your statement of case, as the latter will annoy the judge. Carefully think about using adjectives at all and, if you do the adjectives you use – do they portray the client or the circumstances in a good light or your opponent’s argument in a bad light? (obviously without misleading the court). Also consider the general circumstances of the case, your audience and what is considered appropriate in that particular court or for that particular matter and adapt your language with those considerations in mind; for example, a planning appeal is likely to use more fact based language than a case involving the unlawful prorogation of Parliament.
However, in all cases, remember to write as an advocate, not a witness.
12 Quintilian, Institutio Oratoria at 115
22 Quintilian, Institutio Oratoria at 111
32 Quintilian, Institutio Oratoria at 113
4William Rose, Pleadings without tears (9th edn, OUP, 2017)
5William Rose, Pleadings without tears (9th edn, OUP, 2017)