If they don't understand the reasoning behind the law or at least emotionally sympathize with your case or your client, you'll have a tough time from start to finish. While you may think that appellate judges may be smarter about the Law in some respects, and that may help you post-verdict, the simple truth is that a settlement sooner had means settlement money of more immediate use - and that can be valuable to both you and your client. It also makes your life easier.
Getting the judge on your side starts first with drafting the Complaint in a way that is reader-friendly and rouses emotional appeal of the reader, be it the judge, a clerk, or a local reporter cruising through the clerk's office that day just looking for something to write about. Remember, the Complaint is the one document in a case file that many judges will actually read, sometimes before an Answer is even filed (besides, the Answer hardly ever really says anything meaningful or detailed anyway).
You might as well make your Complaint interesting and take advantage of the opportunity to educate and entertain. Your goal is to make the reader finish reading it and say to themselves "what the defendant did here is just wrong."
Notice that I did not say that you want the reader to say something like "the defendant violated Revised Code number so and so." That's because all ws are fundamentally based on morality and if morality isn't on your side, the law probably isn't going to do you much good in the long run. So put enough well-worded info right up front to give basic facts in a readable way that shows your client was wronged.
Notice that I said both info and facts. The facts tell the story of what happened but it is the info that explains why what happened is also a moral wrong. You need both of them to tell a persuasive story of wrongful conduct.
The first few paragraphs of your Complaint is not the time to lead the horse to water and then cross your fingers and hope that they will figure it out. Be blunt. Be complete.
One of the best opening paragraphs I ever read in a Complaint sounded like the opening few minutes of a 60 minutes story or one of those (real) news magazine shows like 20-20 or something, using plain ordinary words that casually led me to the writer's reality. I grabbed my attention from the start and at the end of it, I knew who was right and who was wrong.
There's an old newspaper rule that can help you and it says that the first paragraph of any story should tell the reader who, what, when, where, why, and how. That can help you cover the bases but it shouldn't be your goal and you may not want to always include the 5 w's in paragraph one.
With that in mind though, the first paragraph of your Complaint should grab the reader and explain the basic thrust of your case in an emotional way that cries out for justice. Avoid reciting the law, legal citations, and legalese in the first few paragraphs - there's plenty of time for that later. And forget about the elements of a cause of action when you write those first paragraphs - that has nothing to do with it. Think of it as you would your closing argument or opening statement. You want to tell your story and say it in a way that makes them agree with you and your side of the case - very, very quickly and very, very strongly.
That's why we think the opening paragraph should focus on the moral and emotional aspect of the facts at hand and do it in a way that makes the judge decide right away that if what you say is true then you should win the case. We all know that judges can find the law (or the reason) to let you win if they want to do so - you just have to make them want to do so.
The place to get the judge on your side is at the start of the case. Mostly because getting raked over the judicial coals later on, well, that is no fun at all.
During the pretrial and conferences later on, you can talk all you want about statutes and social goals, legislative intent, etc, but at the end of the day you have to have the judge on your side or your life in the courtroom can get very, very difficult for you and for your client.
And it all starts at the beginning - before you ever enter the courtroom.
Come back soon for tips on what to do if your case is already going on - more to come.