Kenneth D. Chestek*
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
—President Barack Obama1
[O]ur system will only be further corrupted as a result of President Obama's views that, in tough cases, the critical ingredient for a judge is the "depth and breadth of one's empathy."
—Sen. Jeff Sessions2
The recent retirement of Justice David Souter from the Supreme Court touched off a public debate about the extent to which a judge's personal history and experiences should, or should not, inform his or her decision making. President Obama said while campaigning for office, and again upon learning of the impending vacancy, that "empathy" was a quality he valued in a Supreme Court justice. Predictably, conservative senators attacked this statement as "code" for "biased judges."3 But does this debate obscure a more basic reality: that all judges' perceptions are shaped by their own personal histories?
Modern thinking in brain science and cognitive psychology suggests that humans cannot help but interpret the world they see through the lens of their personal experiences.4 A more productive discussion, therefore, might begin by acknowledging that fact, and then studying how those experiences might (or might not) inform the application of legal principles to result in a just decision.
The role of empathy, or emotional reasoning,5 in judicial thinking is a controversial question. But before we can fully address the proper role, if any, for emotional reasoning in judging, several preliminary questions need to be examined. First, are judges actually influenced by emotional reasoning, which classical rhetoricians would refer to as pathos-based appeals? And, if so, by what mechanism does this influence occur? If in fact judges are influenced by pathos-based appeals, and if we know how that occurs, we will then be in a position to discuss whether this influence is a good thing, or something to try to avoid.
One form of a pathos-based appeal is storytelling. Stories (which some scholars refer to as "narrative reasoning"6) work because they allow readers to imagine for themselves how the protagonist might be feeling, and relate that feeling to the readers' own experiences.7
This article focuses on the question of whether appellate judges are actually influenced by the stories of the litigants who appear before them. Part I will describe what I call the "DNA model of persuasion," setting forth the hypothesis that logical argumentation, while a necessary part of persuasion, is not sufficient by itself and that using the form of a story to weave a pathos-based appeal into a brief will produce a more persuasive document. Part II of this article will describe a study that I devised and implemented to test whether appellate judges find story argumentation persuasive; Part III will present the results of the study. Part IV addresses possible objections to the validity of the test and the sample collected. Part V will begin an analysis of what the data might mean. Among other things, I conclude that stories are indeed persuasive to appellate judges and others, but also that recent law school graduates are not as impressed by stories as more experienced lawyers (and judges) are. Finally, I suggest that stories are helpful because, properly done, they evoke emotional responses within the reader that make the legal claim seem more "real," and hence believable, to the reader.
I. The DNA Model for Persuasive Writing
Stories have gotten a bum rap. Most people think of "stories" as entertaining works of fiction,8 lies, or falsehoods.9 The prosecution in a criminal case is likely to characterize the defendant's version of events as a "story," implying that it lacks credibility.
Yet intuitively, we know that stories persuade. Stories are inherently interesting. We grow up listening to stories, and we learn to tell stories to each other.10We are entertained by stories. Politicians and public speakers often use stories to make points and to teach, and often to persuade. A good story affects the listener, or the reader, at a gut level. When the audience reacts in the way the storyteller intends, the reader will "get" the message internally in a way that is profound. But are stories too "soft" or unreliable to include in appellate briefs? To the extent that stories present an appeal to pathos, as opposed to logos, are they inappropriate in appellate advocacy?
Some appellate judges claim that they are persuaded only by the legal argument, not by any emotional appeal. Some reject the notion that emotional appeal has any place in appellate advocacy.11 The rule of law, they claim, requires logical arguments, clearly and neutrally applied. For example, Justice Antonin Scalia and author Bryan Garner argue that "[a]ppealing to judges' emotions is misguided . . . . Good judges pride themselves on the rationality of their rulings and the suppression of their personal proclivities, including most especially their emotions."12 Instead of emotional appeals, they write, "persuasion is possible only because all human beings are born with a capacity for logical thought. . . . The most rigorous form of logic, and hence the most persuasive, is the syllogism."13 Senior Judge Ruggero J. Aldisert writes that a brief is "nothing more or less than an expanded categorical syllogism."14
But is this formulation complete? Is there no room for judicial intuition,15 or any form of emotional reasoning? In short, are stories inappropriate forms of argumentation?
My claim in this article (and one I have made elsewhere16) is that logic alone is not the best method of persuasion. Rather, a sound legal argument combined with a strong story will be more persuasive than the bare legal argument. At the trial level, this is certainly true. As Professor Robert Burns has noted, trial lawyers can
construct their case from a double helix of norms. One of those strands is constituted by the law of rules. The other strand is constituted by the norms that find their natural home within the life-world of the judge and jury. These common sense norms are embedded primarily in the different sorts of narratives that the trial lawyer may employ at trial, from the fully characterized storytelling of the opening statement to the more Spartan narratives of direct examination.17
The image of a "double helix" DNA molecule provides a useful analogy with which to visualize the persuasive process. To insure that decisions are based upon neutral principles, evenly and predictably applied to any set of facts, the law requires a strictly logical component; let's call that the "logos strand" of the double helix. But pure logic is insufficient in many types of decision making, even at the appellate level. For example, sometimes the legislature enacts a statute that gives the courts wide discretion to decide cases because the possible range of human conduct that might fall within the scope of the statute is too vast for a legislative body to anticipate.18 In other situations, courts have developed (either as part of the common law or in response to a broad grant of discretion in interpreting statutory or constitutional law) tests that require judges to weigh various factors before rendering judgment.19 For example, balancing tests almost by definition require reasoning processes beyond pure logic.20 (How much "weight" does a judge give to the privacy interest of a criminal defendant in determining the reasonableness of a search of his car?) Likewise, a "totality of the circumstances" test invites the judge to examine a body of evidence to render a decision without specifying the logical rules required to evaluate that evidence.21 In such cases, it seems that another form of reasoning must join with the purely logical application of rules to allow the judge to make any decision at all.
For the purpose of this article, I will call this other form of reasoning "story argumentation" or "story reasoning."22 This becomes the second strand of the DNA molecule. My hypothesis is that a brief that relies purely on a logos-based argument will be lifeless, just as a single strand of the DNA molecule is incomplete. Winding in a solid story-based argument will bring the brief to life.23
Many scholars and practitioners agree that briefs should tell a story.24 However, judges don't unanimously agree. Some judges suggest that the key to persuasion is good logical argumentation;25 others admit that telling a good story is also helpful (although most suggest that the "story" is told only in the fact section).26
II. The Persuasion Study
There is little empirical data on what persuades judges. One study reports that judges prefer briefs that are "essays with a clear train of thought" rather than "repositories of all the information a judge might want to know."27 Several other studies focus on what judges think of the quality of the briefs they read.28 But no studies have attempted to systematically measure the effect of story reasoning on a judge's thought process.
In early 2009, I conducted a study in an attempt to fill that gap. I wrote a series of test briefs in a hypothetical case and asked appellate judges,29 their law clerks, and appellate court staff attorneys, appellate lawyers, and law professors to rate the briefs as to how persuasive they were. My purpose (which I did not disclose to the test participants30) was to measure whether a brief with a strong strand of story reasoning, woven in with the logos-based argument, would be more persuasive than a "pure logos" brief. I had two test hypotheses: (1) in general, a brief that included a strand of story reasoning would be more persuasive than a pure logos argument, and (2) this effect would be more pronounced if the brief-writer had a "hard case" to make. That is to say, if existing law favored one side of the case, the brief writer on that side could safely rely on a purely logosbased, or legal, argument, while the writer arguing for a change in the law would have a greater chance of success by relying more heavily on the pathos-based, or story, line of reasoning.
A. What is a "story"?
I first need to define exactly what I mean by "story." There are many potential definitions, most of which are too general or vague to be of much analytical value.31 The definition that I used for this study is one crafted by professional storyteller Kendall Haven:
Story: n.: A detailed, character-based narration of a character's struggles to overcome obstacles and reach an important goal.32
Haven contrasts "stories" with "information-based narratives," which he defines as narratives that "provide just the new essential information and assume the reader has adequate banks of relevant topical prior knowledge to create context and meaning . . . ."33
What distinguishes "stories" from mere "information-based narratives," then, is that stories focus on characters, their goals, and their struggles to achieve their goals. Stories need sufficient context to allow the reader to fully see and understand why the participants in the story behaved as they did, and what they were trying to accomplish in the face of various obstacles. The word "story," therefore, refers to a method of structuring information in a form that a reader will find engaging.34
The need to provide context, however, leaves the writer of an appellate brief in a quandary. Many jurists who have written about what they like to see in briefs emphasize concision.35 Justice Antonin Scalia and author Bryan Garner urge caution in including "sympathetic facts that are legally irrelevant."36 Many appellate court rules require the statement of facts section of an appellate brief to include "relevant facts," perhaps excluding by implication legally irrelevant facts.37 But the context necessary to create a complete story (e.g., the details needed to develop the litigants' character and goals) frequently requires the inclusion of background details that are legally irrelevant, yet necessary for the reader to completely understand what is going on.38 How can an attorney attempting to tell the client's story include such detail without annoying the court, or (even worse) risking a sanction for violating the applicable rules of appellate procedure?
* © Kenneth D. Chestek 2010. Clinical Professor of Law, Indiana University School of Law–Indianapolis. This article is based on a presentation that the author made to the Applied Legal Storytelling Conference, Chapter Two: Once Upon a Legal Story, held at Lewis & Clark Law School in Portland, Oregon in July 2009; I am grateful for the excellent feedback and discussion by participants at that conference. I was assisted during the design phase of my study by Professors Ruth Anne Robbins, Richard Neumann, and Michael Smith, who helped me kick around ideas for how to isolate the "story" variable in order to create a meaningful study. I also want to thank the members of the combined Indiana Supreme Court and Court of Appeals, and the Appellate Practice Committee of the Section of Litigation of the American Bar Association, all of whom provided input to the design of the study. I also wish to thank Professors Ruth Anne Robbins, Ruth Vance, and Laura Graham, who participated in a small-group session with me at the Legal Writing Institute's 2009 Writer's Workshop in Welches, Oregon; the faculties at Indiana University School of Law–Indianapolis and the Lewis & Clark Law School for providing valuable input after faculty colloquia; and Professors Kathy Stanchi, Linda Edwards, and Susan Duncan for their helpful comments. I would also like to thank my research assistants, Kelly Brummett (who managed the online survey expertly) and Shena Wheeler (who provided valuable research assistance on the article itself).
1 Remarks of President Barack Obama, Press Briefing by Press Secretary Robert Gibbs (May 1, 2009), http://www.whitehouse.gov/the_press_office/Press-Briefing-By-Press-Secretary-Robert-Gibbs-5-1-09/) (accessed Apr. 3, 2010). President Obama made an unannounced visit to the podium during the daily press briefing.
2 See Nomination of Sonia Sotomayor to be Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 111th Cong. (July 13, 2009, opening statement of Sen. Jeff Sessions) (available at http://judiciary.senate.gov/ hearings/testimony .cfm?id=3959&wit_id=515).
3 Senator Orrin G. Hatch, Republican of Utah, speaking on ABC's This Week Today in May 2009, called empathy a "code word for an activist judge" who would be "partisan on the bench." ABC News This Week, Sens. Leahy & Hatch (May 3, 2009), http://abcnews.go.com/ThisWeek/story?id=7491153&page=1 (accessed Apr. 3, 2010). The subsequent nomination and debate over the confirmation of Judge Sonia Sotomayor continued in the same vein. See Nomination, supra n. 2. But cf. Ben Bratman, A Defense of Sotomayor's "Wise Latina" Remark—with No Rewording Required (July 17, 2009), http://writ.news.findlaw.com/commentary/20090717_bratman.html (accessed Apr. 3, 2010) (arguing that in employment discrimination cases, her background as a Latina could help her imagine the perspective of a person claiming discrimination, as the law often requires a judge to do). Curiously, conservative Senators did not object to President George H.W. Bush's endorsement of Clarence Thomas as a "warm, intelligent person who has great empathy . . . ." Excerpts from News Conference Announcing Court Nominee, N.Y. Times A14 (July 2, 1991) (available at 1991 WLNR 31110).
4 See e.g. Antonio R. Damasio, Descartes' Error 96–97 (Putnam 1994); George Lakoff, Whose Freedom? The Battle over America's Most Important Idea 16 (Farrar, Straus & Giroux 2006) (describing how a person's thinking is "constrained by the frames and metaphors shaping your brain and limiting how you see the world").
5 Classical rhetoricians would refer to this as an "appeal to pathos." Aristotle described three modes of persuasion: ethos, deriving from the character of the speaker; pathos, drawing on the attitudes created in the audience; and logos, relying on the demonstration of argument. The Rhetoric of Aristotle 8 (Lane Cooper trans., D. Appleton & Co. 1932).
6 Linda H. Edwards, The Convergence of Analogical and Dialectic Imaginations in Legal Discourse, 20 Leg. Stud. Forum 1, 9–10 (1996).
7 Anthony G. Amsterdam & Jerome Bruner, Minding The Law 30–31 (Harv. U. Press 2000) (arguing that humans are predisposed to use narrative structure to construct meaning out of the events of everyday life); Michael J. Higdon, Something Judicious This Way Comes . . . The Use of Foreshadowing as a Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. ___ (2010) (manuscript at 8–9) (collecting scholarship showing that readers of narratives must actively engage the text in order to create meaning, thereby creating a powerful opportunity to persuade).
8 Among the alternative definitions provided by Webster's Dictionary are: "2 a: an account of some incident or event; often: a tale written or told esp. for the entertainment of children"; "3 b: a fiction that is shorter or has a more unified plot than the usual novel." Webster's Third New International Dictionary (unabridged ed., G & C Merriam Co. 1961).
9 "6: fib, lie, falsehood." Id.
10 Storyteller Kendall Haven claims that stories go back 100,000 years in human history, even predating language. Kendall Haven, Story Proof: The Science Behind the Startling Power of Story 3 (Libs. Unlimited 2007).
11 Some United States Senators apparently agree. See comments of Sens. Jeff Sessions and Orrin Hatch, supra n. 2 & 3.
12 Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 32 (Thomson West 2008). There is some evidence that Justice Scalia practices what he preaches about not letting emotional reactions influence legal outcomes. In a recent dissent from a petition granting a writ of habeas corpus, he wrote: This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. In re Davis, 130 S. Ct. 1, 3 (2009) (emphasis in original).
13 Scalia & Garner, supra n. 12, at 41. To be fair, Scalia & Garner do admit that there is a distinction between an overt appeal to emotion and the setting forth of facts that may engage the judge's emotions uninvited. You may safely work into your statement of facts that your client is an elderly widow seeking to retain her lifelong home. But don't make an overt, passionate attempt to play upon the judicial heartstring. It can have a nasty backlash. Id. at 32. Although the authors don't explain why it is okay to make covert emotional appeals but not overt ones, I do agree with this advice. See text accompanying infra n. 99.
14 Ruggero J. Aldisert, Winning On Appeal: Better Briefs and Oral Arguments 21 (2d ed., NITA 2003). Judge Aldisert admits that trial lawyers often do, and probably should, rely on "shamelessly emotional matters," but he cautions the advocate "not [to] carry this stuff upstairs to the appellate court." Id. at 5. On the other hand, he does advise "that the statement of facts [in an appellate brief should] command and retain the reader's attention. Do not bore the judge. Do not make the brief difficult to read. Do not clutter the narrative. Come closer to Ernest Hemingway than Beltway bureaucratese." Id. at 165. He also devotes a few paragraphs advising lawyers to " 'tell a story' in the facts sections of briefs." Id. at 168.
15 Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit admits that "[i]ntuition plays a major role in judicial as in most decision making." Richard A. Posner, How Judges Think 107 (Harv. U. Press 2008). Judge Posner also quotes a recent interview with current Supreme Court Justice Anthony Kennedy in which Justice Kennedy suggests that many judges begin with a "quick judgment" and then determine whether that judgment "makes sense, if it's logical, if it's fair, if it accords with the law, if it accords with the Constitution, if it accords with your own sense of ethics and morality." Id. at 257.
16 See Kenneth Chestek, The Plot Thickens: The Appellate Brief as Story, 14 Leg. Writing 127 (2008).
17 Robert P. Burns, Studying Evidence Law in the Context of Trial Practices, 50 St. Louis U. L.J. 1155, 1171 (2006); see also J. Christopher Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 Leg.Writing 53 (2008). One study of how trial judges decide cases discusses the interplay of "intuitive" and "deliberative" reasoning processes (similar to the "story" and "logos" threads). See Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1 (2007). Jerome Bruner describes this dichotomy as follows: There are two modes of cognitive function, two modes of thought, each providing distinctive ways of ordering experience, of constructing reality. The two (though complementary) are irreducible to one another. Efforts to reduce one mode to the other or to ignore one at the expense of the other inevitably fail to capture the rich diversity of thought. . . . A good story and a well-formed argument are different natural kinds. Both can be used as means for convincing another. Yet what they convince of is fundamentally different: arguments convince one of their truth, stories of their lifelikeness. . . . [T]he structure of a well-formed logical argument differs radically from that of a well-wrought story. Jerome Bruner, Actual Minds, Possible Worlds 11 (Harv. U. Press 1986). For a fuller discussion of how narrative reasoning differs from logical reasoning, see Linda L. Berger, How Embedded Knowledge Structures Affect Judicial Decision Making: A Rhetorical Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes, 18 S. Cal. Interdisc. L.J. 259, 266–269 (2009).
18 The law abounds with examples of subjective tests that require consideration of more than just logic. For example, sentencing decisions require a trial court to weigh individual characteristics of the defendant in determining the appropriate sentence. See e.g. Hayley Bennett and Tony Broe, Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions? 31 Crim. L. J. 75 (2007). For another example, while the Sherman Antitrust Act criminalizes the act of "monopoliz[ing]" or "attempt[ing] to monopolize," 15 U.S.C. § 2, it leaves the definition of the term "monopolize" to the courts, which have developed a vast array of tests and criteria to help them differentiate between legal and illegal monopolies. See e.g. Phillip Areeda, Monopolization, Mergers, and Markets: A Century Past and the Future, 75 Cal. L. Rev. 959 (1987). In discussing the rule of judge-made doctrines in adding substance to the skeleton of the Sherman Act, Judge Posner has said, "The progress in antitrust law owes nothing to legalism. Judges and Justices did not learn to read the Sherman Act more carefully. Instead they learned more about how the economy operates." Posner, supra n. 15, at 376. In other words, logic alone was not enough; judges had to rely upon narrative reasoning to give the Act substance.
19 For example, employment discrimination law may require even an appellate judge to try to imagine the impact of, for example, a hostile workplace on an individual victim. See Bratman, supra n. 3.
20 See e.g. Pickering v. Board of Education, 391 U.S. 563, 568 (1968) (requiring courts to weigh the free speech interests of public employees against the interests of their employers in efficient operations in order to determine whether prior restraint of an employee's speech is permissible). See also Posner, supra n. 15, at 96–97 ("Emotion exerts a huge influence on how people translate their experiences into beliefs, and so on the weights (critical to the balancing tests so widely used in American law) that judges assign to the probable consequences of deciding a case one way or the other.").
21 Justice Scalia describes the "reasonable man" test as "the most venerable totality of the circumstances test of them all." Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1181 (1989). He suggests that, in a "rule of law" system, when all of the available legal rules "have been exhausted and have yielded no answer, we call what remains to be decided a question of fact . . . ." Id. But he notes that in some instances, including the determination of what constitutes a "reasonable search" under the Fourth Amendment, courts have declared the application of the "reasonable man" test to be a question of law for the court. But even he does not suggest that such tests can be eliminated from the body of the law altogether: "We will have totality of the circumstances tests and balancing modes of analysis with us forever—and for my sins, I will probably write some of the opinions that use them. All I urge is that those modes of analysis be avoided where possible . . . ." Id. at 1187.
22 Others have referred to this type of reasoning as "narrative rationality," see Rideout, supra n. 17, at 56, or "narrative reasoning," see Edwards, supra n. 6, at 9.
23 Story, of course, is at its most fundamental level a pathos-based appeal. For the classical rhetoricians who are wondering what happened to "ethos" in this model, think of the hydrogen bonds that hold the two strands of the helix together in a DNA molecule and give the molecule its shape. In much the same way, ethos binds together the logos and story strands of a good argument. The "double helix" analogy also works well in a related context: how law is taught in law schools. The Carnegie Foundation's recent report, Educating Lawyers: Preparation for the Profession of Law, identifies three "apprenticeships" that all students should complete in order to become fully functioning professionals. The first apprenticeship, which the authors designate as the "intellectual or cognitive" apprenticeship, embodies "analytical reasoning, argument, and research" (essentially a "logos strand"). The second apprenticeship "is to the forms of expert practice shared by competent practitioners. . . . [S]tudents learn by taking part in simulated practice situations, as in case studies, or in actual clinical experience with real clients." (This is directly comparable to the "story" or "pathos" strand.) The third apprenticeship develops the "identity and purpose, [and] introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible." (These would be the "ethos" bonds described above.) William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 28 (Jossey–Bass 2007).
24 See Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections, 32 Rutgers L.J. 459 (2001); Robert J. Kapelke, Some Random Thoughts on Brief Writing, 32 Colo. Law. 29, 29 (Jan. 2003) ("Good storytelling is a sound technique in brief writing, as in oral advocacy."); see also Steve Johansen, This Is Not the Whole Truth: The Ethics of Telling Stories to Clients, 38 Ariz. St. L.J. 961, 962 (2006); Carolyn Grose, A Persistent Critique: Constructing Clients' Stories, 12 Clin. L. Rev. 329 (2006); Binny Miller, Telling Stories About Cases and Clients: The Ethics of Narrative, 14 Geo. J. Legal. Ethics 1 (2000); Bret Rappaport, Tapping the Human Adaptive Origins of Storytelling by Requiring Legal Writing Students to Read a Novel in Order to Appreciate How Character, Setting, Plot, Theme, and Tone (CSPTT) Are as Important as IRAC, 25 Thomas M. Cooley L. Rev. 267 (2008). For a fuller listing of scholarly works that discuss the use of narrative in legal persuasion, see Kathryn Stanchi, Persuasion: An Annotated Bibliography, 6 J. ALWD 75, 77–79 (2009).
25 See text accompanying nn. 12 & 14, supra.
26 Aldisert, supra n. 14, at 168; Jacques L. Wiener, Ruminations from the Bench: Brief Writing and Oral Argument in the Fifth Circuit, 70 Tul. L. Rev. 187, 194 (1995) ("Judges are human—even if some of us may not exhibit all of the qualities of that species at all times—so you must demonstrate both why your client should win (the emotional element) and the proper legal way that your client can win (the intellectual element)."); Patricia M. Wald, 19 Tips From 19 Years on the Appellate Bench, 1 J. App. Prac. & Proc. 7, 11 (1999) ("Make the facts tell a story. The facts give the fix; spend time amassing them in a compelling way for your side but do not omit the ones that go the other way."); Alex Kozinski, The Wrong Stuff, 1992 B.Y.U. L. Rev. 325, 330 (1992) ("There is a quaint notion out there that facts don't matter on appeal—that's where you argue about the law; facts are for sissies and trial courts. The truth is much different. The law doesn't matter a bit, except as it applies to a particular set of facts."). Judge Posner suggests that since judges in our system are [occasional] legislators as well as adjudicators, lawyers should make a greater effort to present facts to judges—not so much the facts of the case, the adjudicative facts, which most lawyers do emphasize, but rather the background or general facts that influence a legislative decision ("legislative facts," in the conventional and in this instance useful terminology). Posner, supra n. 15, at 118–119.
27 In the summer of 2000, Bryan Garner did a brief survey of 100 appellate judges, asking only if they thought an appellate brief should be "an essay with a clear train of thought" or "a repository of all the information that a curious judge might want to know about a case." Of the 57 judges who responded, 49 (86%) preferred an "essay with a clear train of thought," none preferred the "repository of all information," while 8 (14%) thought neither formulation was quite right. Bryan Garner, Judges on Briefing: A National Survey, 8 Scribes J. Leg. Writing 1, 2 (2002).
28 See Kristen K. Robbins, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 Leg. Writing 257, 260 (2002); Susan Hanley Kosse & David T. ButleRitchie, How Judges, Practitioners, and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study, 53 J. Leg. Educ. 80, 82–87 (2003). For a study of how judges and clerks read briefs, see James Stratman, Investigating Persuasive Processes in Legal Discourse, 17 Discourse Processes 1 (1994).
29 I chose to limit my study to appellate courts, clerks and practitioners because that is the more controversial arena. It may be more easily accepted that trial judges, who are asked to decide individual cases based upon specific individual characteristics, sometimes gleaned from direct observation of witnesses and parties in their courtrooms, may be more attentive to personal characteristics and the "stories" of the persons who appear before them. Appellate judges, however, are more removed from the disputes and the parties who inhabit those disputes, so that individual "stories" are less likely to be important. See Aldisert, supra n. 14, at 5.
30 The instructions sent to all participants said only that "[t]his study is an attempt to measure empirically what technique or techniques might lead to more persuasive writing." Kenneth D. Chestek, Judging by the Numbers: An Empirical Study of the Power of Story to Persuade (Survey Tool) (June 17, 2009) (available at http://ssrn.com/abstract=1421494).
31 One typical "definition" is that "a story has a beginning, a middle, and an end." Haven, supra n. 10, at 12. But that definition is far too simplistic. By that definition, the sentence "I went to the store and bought a gallon of milk" is a complete "story," even though standing alone it is of no great interest to the reader and conveys little or no information that is useful.
32 Id. at 79. Other storytellers use a similar definition. See e.g. Annette Simmons, The Story Factor: Secrets of Influence from the Art of Storytelling 31 (Basic Books 2001) ("A story is a narrative account of an event or events—true or fictional. The difference between giving an example and telling a story is the addition of emotional content and added sensory details in the telling. A story weaves detail, character, and events into a whole that is greater than the sum of its parts.").
33 Haven, supra n. 10, at 79. Using these definitions, the sentence "I went to the store and bought a gallon of milk" is an information- based narrative rather than a story because it provides no information about the actor, the struggle of the actor, or the actor's goals. To be a complete story, much more context about the actor's struggle to obtain milk, and why he needed it, would be necessary.
34 Id. at 15.
35Aldisert, supra n. 14, at 25–28 and 234–235 (collecting comments from appellate judges emphasizing concision); Scalia & Garner, supra n. 12, at 23–25; see also Kosse & ButleRitchie, supra n. 28, at 85 (noting that their survey of state and federal judges, and other groups, revealed that judges rank clarity and concision as the two most essential elements of good legal writing).
36Scalia & Garner, supra n. 12, at 94.
37See e.g. Fed. R. App. P. 28(a)(7); Ind. R. App. P. 46 (A)(6) (requiring the Statement of the Facts to "describe the facts relevant to the issues presented for review"); In Interest of Michael G., 213 Wis. 2d 124 n. 1, 570 N.W. 2d 253 (Table) (Wis. App. 1997) (in a state with a rule identical to Fed. R. App. P. 28(a)(7), criticizing the state's brief for including background facts that were not legally relevant to the narrow issue before the court).
38 Storyteller Annette Simmons points out that facts which some persons might consider "irrelevant details" may be highly useful because of their ability to trigger emotional reactions in the listener. "Just because we cannot draw a linear connection of relevance does not mean that a sensory detail is not connected in a nonlinear way to choices we make." Simmons, supra n. 32, at 96.