In her treatise, Appellate Practice in South Carolina, Chief Justice Toal encourages attorneys to argue policy in their briefs. The treatise suggests a three-tiered analysis in which the brief first examines the exact words of the text or the precise elements of the common law test; then the case precedent; and ends by arguing policy.
What is the spirit of the law? What were the Legislature’s policy reasons for enacting the statute? What goals was the Court trying to achieve in establishing its common law test? What approach is better for the legal system? Society in general? Chief Justice Toal’s treatise suggests that the brief answer such questions.
Justice Antonin Scalia and Bryan A. Garner similarly advocate that attorneys appeal not just to rules but also to justice and common sense.Their book, Making Your Case: The Art of Persuading Judges, advocates giving the court a reason you should win that the judge could explain in a sentence or two to a nonlawyer friend.
To argue fairness, the book further suggests the lists of maxims found in California’s Civil Code §§ 3509-3548.
Has anyone advanced policy arguments that won the day? Please leave a reply or reach me at www.attorneyroberthill.com.