Example 4.1

Takeaway point 4.1: Emphasize controlling authority, but remember to make a court 4.1 want your client to win. In those wonderful instances when controlling authorities support your position, make sure that the court sees those authorities early and clearly.

The excerpt comes from a federal district court’s review of an administrative agency’s decision involving Laura Liston, who was a citizen and national of Mexico. In 2004, Liston’s father, a U.S. citizen, applied for her Certificate of Citizenship under a federal law called the Child Citizenship Act. That statute offers an easy path to citizenship for foreign children of U.S. citizens — but only until children turn eighteen years old. The federal agency that handles immigration (USCIS) scheduled an interview with Liston, who was approaching her eighteenth birthday. She missed her mandatory interview, and USCIS denied her application when she reached her eighteenth birthday. She brought this lawsuit, claiming that she is entitled to citizenship, and that she never received notice of her interview. As you will see below, the government had an airtight case. In clear and capable prose, it presented an ironclad statutory argument, a helpful regulation, and a controlling case, but its motion was denied. What went wrong? The denial of this motion illustrates one of the most important lessons in persuasion: telling readers that they need to do something rarely works as well as making them want to do it.

Source: Government’s motion to dismiss in Liston v. Chertoff, No. CV-06-265-LRS, 2007 WL 681178 (E.D. Wash. Jan. 11, 2007).

Avoid nouns or verbs that obscure who is acting (e.g., “adjudication”).

The motion reprinted all five statutory requirements, but I reprinted only the disputed one. Although many readers skip block quotes (or perhaps suspect that they represent shortcuts to the hard work of creating original persuasive language), the key language of a statute, regulation, or contractual provision is important enough to quote verbatim. Even so, make readers want to read the quote, for example, by preceding it with a sentence explaining why it matters or by using a teaser (such as by prefacing a block quote with the sentence, “The defendant’s CEO then made a stunning admission: …”). Likewise, italicize key parts of a block quote so that readers can instantly spot the most important bits.

alt=00105.jpg> Having quoted the statute, the motion does not begin to rebut the other side’s argument. Rather, it continues to build its affirmative argument — just as it should do. Here, the government invokes a regulation to support its statutory argument.

This passage exemplifies the risks of telling a court that a law “must be followed” rather than making the court want to do so. The motion twice admits that the consequences of denying Liston’s citizenship application would be “harsh.” When possible, avoid such concessions and focus instead on why an outcome is fair or unjust — such as by emphasizing the variety of alternative paths to citizenship for Liston. While concessions sometimes protect your credibility, they usually backfire.

Notice how defensive the motion becomes here; it argues that its position is “not irrational” — hardly a compelling argument. Instead, frame your position positively, like this: “Clear rules are vital to the orderly administration of an immigration system that processes millions of applications every year. If the Court grants to Liston an exemption from an unambiguous statute, countless other applicants will seek exemptions from ironclad laws.”

This stellar example of the second Conclusion in CRAC ensures that readers will grasp the lawyers’ point.