Introduction

Legal realists have long suggested that there is a divergence between the formal legal standards to be applied by a court and the factors that actually persuade judges to rule for one side or the other. Many practicing trial lawyers treat this proposition as a fundamental postulate. Under this view of the law, counsel must constantly communicate with the court on two separate levels: making arguments that use the terminology of the applicable legal standards while simultaneously informing the court of the facts and circumstances that counsel believe will actually be persuasive.