In everyday life, emotion and reason are not separate, and both play a role in making decisions. But we as lawyers like to think that reason and logic control in legal decision-making, especially in appellate work. As lawyers, we train ourselves to look at things methodically and analytically. Still, emotion plays a strong part in legal decision-making, even at the appellate level.
Emotion comes into play on appeal in a couple different ways. It can make a court look more closely at the merits of your case. If the resolution of your case is clear, it will get decided without resort to emotion. But if it’s not clear, and emotion and a sense of fairness are involved, maybe the court will take a closer look. Appellate judges deal with heavy workloads. An emotional argument (made well) can help bring your case to the top of the heap.
In addition, emotion can be used to help drive a result, where fairness is important. Concepts of fairness call into play the emotions of sympathy with a party and anger at an injustice. Emotion can play a role in two kinds of cases where a sense of fairness is especially important: cases where the abuse of discretion standard applies, and cases where policy is involved.
The first kind of case is one governed by the abuse of discretion standard of review. An appellate court is reluctant to disturb the exercise of discretion by the trial judge. But an appellate court is more likely to do that where there is a sense that the trial court’s decision was really unfair. The more an attorney can show that unfairness, driven by emotion, the more likely that an appellate court will disturb the trial court ruling. In those kinds of cases, the court will look harder if there’s a sense of unfairness, that comes from an emotional argument.
Emotion can also have impact where policy influences a decision. Policy can be rooted in fairness, it seems to me, and that’s where emotion comes into play. Nardini v. Nardini, 414 N.W.2d (Minn. 1987) is an illustration. Nardini involved the distribution of assets after a long-time marriage. The key asset was a business that sold and maintained fire protection equipment. Shortly before the marriage, Ralph Nardini bought the shares of a predecessor company for $2500. That amount reflected the value of an old truck and a carbon dioxide tank. Over the course of a 30-year marriage, the business increased in value substantially, by more than 100 times the value of that initial stock purchase. Both Ralph and Marguerite contributed to the growth of the business in different ways. The Minnesota Supreme Court had to decide whether the increase in value of the business during the marriage was marital or non-marital property. There was not controlling Minnesota law deciding this issue. A mechanical approach would have credited Ralph with full ownership of half of the business reflected by his initial purchase of shares (with the rest of the value divided between the parties). The Court ended up rejecting that approach. The growth in value of the business was not due to the appreciation of some asset purchased before the marriage. The growth was based on the efforts of both parties. Income generated by the parties during the course of the marriage had been reinvested in the business. In deciding Nardini, the Court went beyond a mechanical approach to valuation of the business and looked at the bigger picture. A sense of fairness underlies that result. It would be unfair to deny Marguerite a share of the increase in value when her efforts had contributed to the growth of the business. I think unstated feelings drive the sense of fairness underlying the decision.
So what are the best ways to work emotion into an argument? First, you need to be subtle. Appellate judges will resent and resist an overt play to emotion. Lay out the facts that evoke emotion in an understated way, and let the court reach its own conclusions, not resist yours. It goes back to the maxim, “Show, don’t tell.”
The best place to do that is in your statement of facts. That is your first opportunity to reach the judges, and the place where emotion can have the most impact. Your statement of facts should “humanize” your client, giving what one writer calls giving a “rounded view” of the client, rather than a “flat” one.
Your statement should not just be a hodgepodge of isolated facts. It should tell a story that places your client in the best light. (Being careful, of course, to acknowledge adverse facts.)
Let the emotions that favor your side reinforce your legal argument.
What should you do if the other side makes an emotional argument on appeal? You have two choices: launch your own emotional counterattack, showing why ruling for your client is fair, or steer the court away from emotion, and argue that black letter law and logic support your position.
(This post draws on thoughts presented on March 18, 2016 at the Minnesota Appellate Practice Institute.)