Forgotten Persuasion

We write to persuade, but how do we overcome the reader's memory constraints?


You've completed your masterful brief, a 50-page model of persuasion. Now a sobering moment of reflection: How much of this eloquence will the judge remember? After all, judges are only human and we humans forget much of what we read—not just the words but also the concepts. Like every advocate, you want the judge to remember the concepts critical to your argument.

Consider how people in other fields try to persuade. Advertisers spend millions trying to set their product apart so that we'll remember it. Though the product may seem irresistible, the advertiser has flubbed if we forget the message.

The same is true of an advocate's message. Though your advocacy may be eloquent, it is wasted unless remembered. Think about how masterful communicators have created memorable sentences, using alliteration, metaphor, simile, and rhyme to ensure that readers will remember particular points. We call these memorable sentences "aphorisms."

Consider Chief Justice Roberts's opinion condemning an expert witness's consideration of the defendant's race as a risk factor for recidivism:

There were only "two references to race in [the expert witness's] testimony"—one during direct examination, the other on cross. But when a jury hears expert testimony that expressly makes a defendant's race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupied in the record.

Buck v. Davis, 137 S. Ct. 759, 777 (2017). With this explanation, the Chief Justice closed with an aphorism, crystallizing a key point through alliteration and metaphor: "Some toxins can be deadly in small doses." Id.

Justice Kagan also used metaphor to create a vivid image when dissenting in American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 252-53 (2013) (Kagan, J., dissenting). There Justice Kagan argued that the majority had miscast the issue as one involving the suitability of class certification:

The Court today mistakes what this case is about. To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled. So the Court does not consider that [the petitioners'] agreement bars not just class actions, but "other forms of cost-sharing … that could provide effective vindication."

570 U.S. at 252–53 (italics added).

Both aphorisms pack the argument into a concise sentence, creating an image easily recalled and readily linked to the writer's key point. You needn't aspire to the rhetorical heights of wordsmiths like John Roberts or Elena Kagan, but you can use metaphor, simile, alliteration, rhyme—and other tools in your rhetorical toolbox—to create durable images for points of special emphasis.

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  1. Defence attorney Gerry Spence asked Judge Edward Lodge for an extra two hours summation in the complicated Ruby Ridge trial. Judge Lodge responded that the mind can absorb only what the seat can endure.

    I think that applies not only to listening to trial summations and reading long legal briefs, but to watching movies, but I digress.

    1. Heh. I think this is my new favorite legal quote.

    2. “I think that applies not only to listening to trial summations and reading long legal briefs, but to watching movies, but I digress.”

      Exception: Lord of the Rings (unless you didn’t read the book first, but of course everyone read the book, right?)

  2. I recall the aphorism a little differently than Justice Kagan did: “If the only tool you have is a hammer, every problem looks like a nail.” I used that version in a paper that critiqued a Bar proposal to address an “eviction crisis” among low income tenants by increasing the number of pro bono defense lawyers. If most tenants who were faced with eviction were the victims of bad landlords who were violating tenants’ rights, then more lawyers for tenants might be an answer. But our paper pointed out that the vast majority of eviction cases were on account of non-payment of rent because the tenant didn’t have the money. In many cases, the tenant’s cash shortage was temporary, so a better way to reduce evictions was to develop programs to provide short-term cash advances to poor tenants so they could pay their rent.

  3. LOL. I know nobody more verbose than attorneys. Written or spoken they go on and on and on and on. And to make it worse, they express the whole drawn out thing as a single run-on sentence.

    I suffer from insomnia. To aid sleep, I listen to audio of lawyers from the Federalist Society, or from SCOTUS. Just one Bryer hypothetical is enough to do the trick for me.

    Salman Khan of makes the point well. The attention span of humans is 10 minutes. Anything longer than that should be broken into parts with breaks between the parts.

    1. It would be a pretty remarkable coincidence if the human brain evolved an attention span that happened to correspond with our invented decimal numeral system. It would also be incredible if attention spans were, uniquely among inherited traits, so consistent that a standard length was pedagogically useful. It causes me to wonder that maybe Salman Khan manufactured this “fact” as an aphorism to add credibility to his videos, to draw in more views from uncritical idiots.

  4. “Skydiver’s parachute malfunctions; dies of Covid-19.”

    The breviloquence scintillates.

      1. No punctuation?

    1. I didn’t know parachutes could catch it.

  5. Possibly the finest dissent from denial of cert published in 2008:

    “North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a threedollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.”

    Mr. D.

  6. The most effective appellate briefs I have ever read drive home one major point and lead the panel on how to write a decision. Overworked judges with too high of a case load and not enough clerks don’t have time to make their own roadmap. You just grab their hand and get them to the destination with enough case law to support your conclusion. If the facts are with you on your case you have a decent chance of winning. Worst briefs I ever have read go into scholarly arguments or collect vast amounts of cases. Short and sweet wins the day. Remember the brief you are writing is probably going to have no more immediate effect then your client winning the case. And that is what counts.

    1. That’s why I like reply briefs and think sur-replies should be liberally allowed. If done well, they are self contained so that the reader can get all the key factual points of the story and main legal standards in one document without a bunch of fluff. Then they get right to the point about the weaknesses in the other side’s argument.

      1. According to the book by Scalia and Garner, judges tend to look at the reply brief first. It’s shorter and gives a quick idea of the arguments pro and con.

  7. Hard to think of memorable aphorisms in the types of cases the Court won’t take. One should always try though. What rhymes with “additional insured endorsement”?

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