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16 Second Draft 1 (2001-2002)

handle is hein.journals/secnd16 and id is 1 raw text is: U Teaching Students to Persuade Used Cars and Recycled Memos Brian J. Foley (Widener University School of Law) Persuasion is getting someone to do what you want him or her to do. There are lots of ways to persuade. You can force someone at gun- point. You can use your position of authority and bark orders. You can pay someone to do something or otherwise bargain. If you are an infant, you can cry. Or you can show the person that her doing what you want her to do will in fact meet her needs.' The last option is the only one relevant to law students learning how to convince judges. Lawyers can't point guns at judges, can't pull rank on judges, can't pay judges or Creating Facts Bonnie M. Baker (NYU School of Law) I find that students enter law school with an intuitive understanding that the craft of the lawyer, in role as an advocate, is to persuade. They understand the advocacy function as one of urging a particular view of the law or the facts on a neutral third party. What uniformly comes as a shock to virtually all of my students is that the very creation of fact is inextricably linked to advocacy and persuasion. Law students find this an uncomfortable, controversial proposition because they are accustomed to taking the existence of objective fact for granted. The standard fare for first-year law students consists of a steady diet of appellate decisions, where the facts in the record otherwise bargain for a favorable decision (read: bribe). Cryingis legal but rarelyworks. Given this understanding, I introduce my first-year legal writing students and upper-level advanced brief writing class to persuasion with three baseline principles: persuasion is something we all do all the time anyway; persuading a judge is merely a highly stylized form of this activity; and persuasion is the heart and soul, the fun part, of lawyering. The following exercises are an effective way to convey these principles. EXERCISE 1: The Used Car Lot Have your students envision themselves walking onto a used car lot. seem dropped, like manna from heaven, into the laps of the judges. Students are encouraged to give little, if any, thought to the genesis of fact. In my Lawyering course,' I suggest a pyramid-like nature of the factual universe: at the peak of the pyramid lies the narrow slice of fact that is recited in the appellate opinion. This slice is culled from the appellate record, which in turn is drawn from the pool of facts that constituted the evidence at trial in the court below The facts found at trial come from an even broader source of fact, the discovery process, which yields facts that are relevant and not, helpful and damaging. At the wide base of the pyramid, facts are born, often the product of interactions between attorney and witness. Thus, it is here that persuasion finds its roots. To introduce students to the concept CONTINUED ON PAGE 5 It's hot, and sun glints off the chrome and glass. Immediately, a salesman struts toward a car and promises, I stand behind this car, it's great, and it has new tires. Ask your students if they will buy the car. They'll probably say no. Ask them to think why for a moment. Then move on to present another scenario, with students envisioning themselves walking into a pleasant, climate- controlled showroom. This time, the salesman shows no cars-at least not right away. Instead, he sits the customer down in his office and asks her what she's looking for. Her needs and concerns emerge. Here, CONTINUED ON PAGE 4

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