Telling judges what they “must” do only dares them to do the opposite

Timothy Kowal, Esq.
May 4, 2023

Consider these two alternatives for ending a brief:

“This Court MUST reverse.”

“This Court SHOULD reverse.”

Stefan Love, who reviewed John Blumberg’s book Persuasion Tips for Trial Lawyers, explains why you should consider the latter choice.

No one—judges included—like being told what they “must” do.

But what if the authorities are clear that the result is compelled as a matter of law? That makes it tempting to write “the Court MUST do what I say.” On the other hand, you ought to have made it clear in your argument already what the authorities say.

So the better choice is to tell the court that the result you want is merely correct—and don’t dare the court do disagree by insisting that it is “compelled.” As Stefan says, the Court of Appeal doesn’t want to be ordered around.

But of course, the decision is up to you.

Watch the clip here.

This is a clip from episode 43 of the California Appellate Law Podcast. Listen to the full episode here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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