Here are Josh Taylor’s favorite tips for persuasive legal writing that does not cross the line into conclusory argumentativeness.
Welcome back to the #LegalWritingReminders series!
Zealous advocacy to persuade an audience while maintaining a professional tone is arguably one of the hardest lines to walk in legal writing. I’ve often seen students and practicing lawyers jump back and forth over that line, ultimately discrediting or distracting from their underlying arguments. To argue persuasively and professionally takes hard work, but it’s why you’re a lawyer.
Here are a few of my favorite tips for persuasive legal writing that does not cross the line into unprofessional conclusory argumentativeness.
Let Case Language Make Your Strongest Statements
It’s easy to paraphrase legal language with your own interpretation, but strong statements without quotation marks around them can lose power. Whenever possible, let a judge (or other authority) make your strongest points for you. Using language directly from cases lets you make your most important and impactful points via the precedent you’re relying on.
A related concept is to ensure that you are explicit about every link in the caselaw logic chain. After all, logic games on the LSAT weren’t for nothing! Sometimes, when living with a case or argument for a long time, you forget to link the entire chain and may take your reader’s understanding of the legal material for granted. Be sure that each link in the chain is described in some way. And, of course, if each logic link contains text directly from a case it helps strengthen that chain.
Rephrase or “Spin” Your Legal Rules
“Spin” gets a bad rap these days. But despite its politically pejorative connotations, lawyers must learn to spin their legal rules (and facts, for that matter). Spinning a legal rule does not obscure its true meaning or context so as to misrepresent the legal standard. It does, however, emphasize what your side needs to be emphasized, and frames the rule in a way that suggests the desired outcome.
Take the following legal rule from a recent Supreme Court decision, for example:
“[T]here clearly is a ‘compelling need’ for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test.” Mitchell v. Wisconsin, 588 U.S. __ (2019).
This rule can be restated or reframed to both sides’ benefits.
Defendant: As the Supreme Court has held, there “is a ‘compelling need’ for a blood test of drunk-driving suspects” only where their “condition deprives officials of a reasonable opportunity to conduct a breath test.”
State: The Supreme Court left no gray area in holding that, where, as here, a drunk driver’s “condition deprives officials of a reasonable opportunity to conduct a breath test,” there “clearly is a ‘compelling need’ for a blood test.” (Of course, indicating after the citation that you have added emphasis.)
Play around with spinning legal rules and facts in your next brief by adding qualifying and limiting language (for example, “only” in the Defendant’s rule above).
Again, this is only valid if the rule does not substantively change, so spin carefully and considerately.
Short Sentences Are Gold (and Gongs?)
When expounding on a complex legal idea, it is easy to fall into a pattern of long sentences (ones over four words). To run together long sentence after long sentence is to challenge your readers to a grueling test of endurance. Give them a water break with a short sentence every so often. Short sentences serve two purposes: the aforementioned break and, more importantly, the opportunity to leave a strong impression with an economy of words.
That second purpose is perhaps the most important. A short sentence to highlight an argument signals that the point you’re making is so logical, so obvious, so simple that it can be distilled into only a few words. It may be the former musician in me, but a short impactful sentence always reminds me of a sonorous gong with the effect of ringing resounding reverberation after the initial impact.
More Legal Writing Tips on Attorney at Work
“Honing Legal Writing Skills: Passive Voice and Parentheticals” by Josh Taylor
“Using Colons and Semicolons When Writing Briefs and Memos” by Josh Taylor
“Commonly Interchanged in Parlance and Commonly Confused in Writing” by Josh Taylor
“Harness the Intuitive, Persuasive Power of Analogy” by Susan Kostal
And be sure to read “Get to the Point!” by Teddy Snyder for quick tips on clear communications.
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