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Keep In Mind The 'Ignorant Reader' To Produce The Best Persuasive Writing

Even the best, most hardworking judges will be able to devote only a small amount of time to your briefs and letters.

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John G. Balestriere

John G. Balestriere

Even the best and most hardworking judges or arbitrators will be able to devote only a fraction of the time reading your briefs and letters that you will devote to writing them.

Asking and correctly answering “Who is your audience?” is one of the most basic techniques to follow for persuasive communication (or really any communication). I have a fuller version of the technique to discuss in a future column, but anyone—a journalist, a trial lawyer, a blog columnist, a writer for an alumni magazine, a playwright—needs to understand who her audience is going to be in order to write to and somehow connect with that audience.

For my colleagues and me, that audience very frequently is a judge or arbitrator. More precisely, it is not simply just one final decision maker, but anyone who will influence that decision maker, including, for example, a judge’s clerk or an arbitrator’s colleague or assistant. And very frequently, that final reader that you want to affect is, when compared to you, nearly completely “ignorant.”

This is not an insult, and I make no normative assessment when I write that. What I mean is that, compared to you, all in love with your case, your typical judge or arbitrator and her colleagues has perhaps hundreds of other matters on which she must spend her time. Unless you are trying the case or conducting the hearing in front of such judges or arbitrators every day, they simply have to spend a lot of their time on other matters. Look at this way: if you do the kind of complex litigation and arbitration we do at our firm, even the busiest lawyer in a given month is generally spending his or her time on only half a dozen or fewer cases. Your typical judge or arbitrator will spend his or her time on dozens and dozens of cases in the same time period. Your case simply is not nearly as important to the judge or arbitrator as it is to you.

I’m not attempting to bring us lawyers down from our created perches of self-importance (though any efforts in that regard are clearly worthy). I’m asking us to do something that we clever lawyers do not enough: look not at the quality of the elements of a given situation, but instead the quantity of such elements. Here, the straightforward fact is that we spend a ton more quantity of our time on our matters than our judges and arbitrators do, and that matters in terms of how we should write to them.

The highly disparate amounts of time devoted to given matters are what make our judges and arbitrators, in the way I’m using the term in this piece, “ignorant.” No matter how bright or hardworking those judges and arbitrators are, they simply cannot know all you do about the case.  More specifically, when they come to your case—to read your letter, your complaint, your notice of claim (those are persuasive documents, too, of course), your brief or memorandum of law—they will not have spent nearly as much time on the matter as you have. They will not know the detailed facts, and certainly very few facts or the background if it is such decision maker’s first time with your matter. But even if you have been before such judge or arbitrator on this matter in the past, keep in mind how many cases he or she has seen since then. It’s almost never half a dozen.

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Thus, to win for your client, you need to keep in mind this “ignorance” of the decision maker. That means simple things, like not using abbreviations that may have become second (or first) nature to you and your colleagues over the last half year. It means not referencing this or that purported landmark case that you maybe never heard of before the matter, but you now think of at least weekly.

It also means—and here’s the real practice point of this piece—ensuring that once that ignorant but very influential decision maker reads your work, it makes sense and persuades. And it has to do it so very, very quickly.  You serve yourself well by not only keeping your reader’s “ignorance” in mind, but his or her workload: expect the judge or arbitrator to be appropriately impatient with you, ready to go on to the next writing from the next lawyer in the next matter (and probably hankering to if your writing is boring or doesn’t get to the point right away). He or she only has a little bit of time for you. Use it well.

The judge very well may be smarter than you. The arbitrator may very well have seen the general issue in your arbitration many times before. But if you’re doing your job right, you unquestionably know the particular relevant facts and law better than they do. You need to get that “ignorant,” time-pressed reader on your side if you want to win for your client.

John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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