Solo Contendere

Not too long ago I went to the Minnesota Orchestra’s Jazz Tribute: “A Love Letter to New Orleans.” It was incredible; there’s no other word for it. The music was a letter written without words, written in the raw emotion of the music. The vitality of the city in the clarion sax, its captivating power in the drums, its edgy playfulness in the piano and moodiness in the bass, and behind everything, a haunting trombone of a city lost to tragedy.

I love jazz though I’m by no means a connoisseur, but I was hooked. Without any lyrics, even the cold, Scandinavian audience of the Minnesota Orchestra began to warm. The energy grew; it embraced us, teased us, danced with us, as we were washed with the coy echoes of the piano and the promiscuous saxophone solos. Bit by bit, we all began to fall in love with New Orleans, too. And then, abruptly, it was intermission, and the music was gone.

It hurt like heartbreak.

I’ve thought back to that show a number of times over the last few weeks, because it has come up in briefs and even court appearances. Not the event itself, not the Minnesota Orchestra, but what that night made me think of.

In our orientation at House Gryffindor, one of the deans told us that consistently the best legal writers were engineers and those with hard science degrees. Consistently the worst were those with degrees in journalism and English.

“Great,” I thought. “I already have two strikes against me.”

Law school ground most of that out of us, training lawyers to write briefs with all the persuasive style and elegance of a mathematical proof. That’s well and good for tax attorneys (whose job is, after all, mathematical proofs). But for litigators, whose job very commonly involves disputed facts or, at the very least, disputed legal interpretation, reducing a legal dispute to a mathematical theorem misses an important point.

When we rely on precedent to do the heavy lifting, we forget that juries and even judges often have to be persuaded why our facts matter or why they should share our view of precedent. We have to move others to adopt our positions, every bit as much as six jazz musicians from New Orleans had to move an audience to listen to, and then accept, and then share a love for a city most of the audience had never seen.

In law school we all heard that “bad facts make bad law.” The reason bad facts make bad law is that judges (and juries) are persuaded by stories and by the power of rhetoric. But too often we rely on the weight of authority instead of, rather than in addition to style. Sheer numbers are not, in themselves, persuasive. Sheer numbers are a pie-eating contest. Rhetoric has power, as much as a century-old case unearthed from a decaying Northwest Reporter, and when we ignore the power of words and their persuasive appeal, we reduce the love letter to New Orleans to a stodgy lecture on the history of jazz. Style is important; it attracts us to an argument, catches our attention so that we pay more attention to the substance. Style turns heads. Without persuasive style, your argument just has a great personality.

Sitting in the theater back in April, I saw the persuasive power of sounds without words, and more than ever, I was tired of the sound of words without persuasive power: chopped legalese and dusty Latin terms of art. It made me wonder why lawyers can’t — or worse, don’t try to — move people the way musicians do. And as I was thinking that, the second half began.

It wasn’t a concert, it was a garden. The same core of artists began the second act, rooting the music in the first act but expanding it as other musicians added their seeds to the harmony, keeping the variety and color of the music grounded in the same New Orleans jazz tradition that had so influenced them all. Aaron Neville was spectacular, of course; it was Aaron Neville. But the part that stuck me most was the introduction of Bill Summers. Summers is a percussionist primarily, but he walked onstage playing something flute-like. He had both hands around it and we couldn’t see what he was playing, but the tune was catchy and the bassist briefly picked it up. Then Summers stopped playing and took a drink out of it.

He was playing a Coke bottle. Small-firm practitioners can complain about the lack of resources all we want, or despair of the disparity of power in small firms versus large firms, but Summers went onstage at the Minnesota Orchestra playing a Coke bottle. No matter how many or how few resources your firm has, how broad your Westlaw subscription is or how large your law library, or even how many associates or paralegals do the research, at the end of the day someone has to stand up and argue the point before a judge or jury. This is a chance for small-firm practitioners to level the playing field. No army of research drones can add persuasive style to your argument.

If you want your argument to have persuasive style, to convince the judge and jury of the rightness of your position, the lawyer standing up and making the argument has to be aware of, and able to use, the moving power of rhetoric. In that way, we are all jazz musicians.