Five Steps Towards Persuasive Writing

        By T. Evan Schaeffer

        The goal of persuasive legal writing seems obvious enough. We want the court—whether at the trial or appellate level—to adopt our position.  Nothing more, nothing less.

        But this seemingly self-evident advice begs another, more critical question.  If persuasiveness is the goal, how do we get there?  What are the components of persuasive writing?  What separates the amateurs from the pros?

         Persuasiveness is not single virtue, but a function of many things coming together at once.   The five steps that follow are a process, not a blueprint or a paint-by-numbers exercise.  There is no "quick fix" when it comes to persuading a court.

         You won't find too much about style or grammar on the list.  It assumes that most already know the basics: write in the active voice, cut out the needless words, learn to write grammatically. 

         Important, critical skills.  But once mastered, not enough.

         Step #1 Get Organized

         That enduring requirement of high school composition—that is, to begin your writing projects with an outline—is still a good idea.   An outline gives direction to your project from the start and makes the laborious process of writing the first draft that much easier.

         The typical legal brief or memorandum has four parts: an introduction, factual background, argument, and conclusion.  You should consider a longer introduction that provides a sort of "executive summary" that states at the outset why your client should win.  The conclusion is normally a perfunctory close of only a sentence or two.

         If you are responding to something your opponent has already written, it is often easiest to adopt your opponent's organization—that is, respond to your opponent's arguments in the same order that he or she presented them.

        For longer legal briefs and court memos, consider adding a table of contents at the front.  It aids comprehension and shows you have confidence in your ability to organize.

         Step #2  Maintain Your Credibility

         The court will respond more favorably to your arguments if they think you are fair-minded and wise.  The basic rules are easy.  Present a cogent legal argument.  Don't misstate the facts or the law.  Be thorough in your research.  Always cite-check your case citations.

         Your credibility is also influenced by how seriously you take the arguments advanced by your opponent.  Any legal brief or memo that fails to address every point made by the other side is inherently flawed.  It's a rule that's often violated, especially when we're rushed. 

         What about concessions?  It's often strategically wise—and an automatic credibility-booster—to state your opponent is right on points that don't matter to the end result.  Why do so many lawyers feel compelled to defend indefensible positions that aren't material?  Point out other reasons why you should win anyway.

         Credibility also has a stylistic component.  A common problem is overstatement, which will make the reader question every other forceful statement you make.  Example: Defendant contends Smith v. Jones is distinguishable, but nothing could be further from the truth.

         Never come on too strong.

         Step #3  Adopt the Right Tone

         It's at this point that many veer wildly off course.

         Tone can be defined as the underlying attitude we take towards our opponent and our opponent's arguments.  This attitude isn't explicitly spelled out, but shows through the fabric of our legal arguments.

         Tone comes in all varieties—objective, respectful, or professional on the one hand; condescending, self-righteous, or bitter on the other.

         Too often we pull out all our guns and attack, either rudely mocking the arguments of opposing counsel, or even worse, rudely mocking opposing counsel. 

        This approach seems to add an extra oomph to the force of our legal argument. 

        Yet all too often, what actually happens is that we alienate the reader—that is, the court.

        An angry, defiant tone just doesn't add a lot.  Ever met someone whose response to every difficult situation is a sarcastic retort?  Amusing for a few minutes, but then listeners get bored or disgusted, and want to leave the room.

        Remember: The judge already knows you disagree with your opponent's position. 

        Begin by rationally stating why you disagree.  An objective, reasonable tone is usually the most persuasive.

         Step #4  Make It Easy to Read

         This one seems obvious—or does it?  To many, the gut reaction is: Easy to read? 

         No one will take it seriously!

         These people believe that a difficult style reflects a brilliant mind.  Six-syllable words, a pompous delivery, ideas that are hidden in thickets of tangled  syntax—it's how philosophers and professors write, isn't it? 

          Yet these aren't models for lawyers to emulate.  If your readers have to work to decipher your meaning, they may ultimately give up.  And they won't be persuaded.

         So revise.  Again and again.  If the meaning isn't clear, it's not a sign of brilliance—it's a sign you were rushed, or apathetic, or lazy. 

         As you revise, look for ways to make things easy on the reader. Since a page that presents a lot of white space is more inviting than one featuring long, dull-looking blocks of text, aim for shorter paragraphs.

         Another way to add white space to the page is a liberal use of headings and sub-heading.  In the text itself, use bulleted lists to quickly group related points.

         Finally, eliminate unnecessary modifiers.  When you complete the next-to-last draft of your brief, make another pass through the text and ruthlessly cut all unnecessary adjectives and adverbs.

         Example: Because there are clearly no question of fact for trial, Defendant is obviously entitled to summary judgment.

         The point is just as strong without the adverbs.

         Step #5  Take Pride in Your Work

         Those who take pride in their work put out a finished product that's pleasing to the eye. It's a lesson from marketing: packaging counts.  Books are judged by their covers.

         So proofread carefully.  Fix the typographical errors.  Don't allow your name to be placed on work that looks sloppy or unprofessional. 

        A final component to persuasiveness is your own reputation, the history you bring to the court.  As you write and file hundreds of briefs and legal memos over the course of your career, you become a name brand in many different courts—for better or for worse. 

         A single misstep can undermine the goodwill you've established over the years.

         In the final analysis, of course, good writing only counts for so much.  Sometimes we lose because we have to defend a position that's clearly wrong. 

Author's Note  If you like this article, you'll find many more legal-writing tips in the "Legal Writing" category of my weblog, The Illinois Trial Practice Weblog.

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