Category Archives: Persuasion

Placement matters: Fixing 4 missed chances for persuasion

Here are 4 missed opportunities for persuasion that I see in persuasive legal writing. In each situation, the substance is strong, but the placement isn’t. Because I’m focusing on placement—the location of key content within a paragraph—I’ve used nonsense text so you won’t be distracted or bored reading long paragraphs. Just focus on the green, highlighted text.

1. Missed chance: Relegating a forceful concept from a case to an explanatory parenthetical buried in mid-paragraph.

In pretium lorem sed elit rutrum maximus. Nullam venenatis semper est, et luctus est aliquam at. Vestibulum tempor vitae neque et volutpat. Maecenas commodo laoreet nulla vel porta. Fusce iaculis tortor ut pulvinar eleifend. Ut auctor risus a vehicula efficitur. Flake v. Adams, 123 S.W.3d 456, 458 (Tex. 2011) (recognizing equitable adoption as valid in Texas). In gravida, turpis et ornare gravida, orci quam vulputate urna, id tincidunt lectus ex pulvinar dolor. Proin ac tortor sapien. Sed maximus in sapien quis dignissim. Cras ut leo sed odio maximus euismod ac sed erat.

1a. Why not state the forceful concept in the first sentence and then cite the case, omitting the explanatory parenthetical? (Assuming the concept is actually forceful and important—not merely background.)

 The Texas Supreme Court recognizes that equitable adoption is valid in Texas. Flake v. Adams, 123 S.W.3d 456, 458 (Tex. 2011). In pretium lorem sed elit rutrum maximus. Nullam venenatis semper est, et luctus est aliquam at. Vestibulum tempor vitae neque et volutpat. Maecenas commodo laoreet nulla vel porta. Fusce iaculis tortor ut pulvinar eleifend. Ut auctor risus a vehicula efficitur. In gravida, turpis et ornare gravida, orci quam vulputate urna, id tincidunt lectus ex pulvinar dolor. Proin ac tortor sapien. Sed maximus in sapien quis dignissim. Cras ut leo sed odio maximus euismod ac sed erat.

2. Missed chance: Relegating a forceful quotation from a case to an explanatory parenthetical.

In pretium lorem sed elit rutrum maximus. Nullam venenatis semper est, et luctus est aliquam at. Vestibulum tempor vitae neque et volutpat. Maecenas commodo laoreet nulla vel porta. Fusce iaculis tortor ut pulvinar eleifend. Ut auctor risus a vehicula efficitur. Flake v. Adams., 123 S.W.3d 456, 458 (Tex. 2011) (“Equitably adopted children have the same inheritance rights as biological children.”) In gravida, turpis et ornare gravida, orci quam vulputate urna, id tincidunt lectus ex pulvinar dolor. Proin ac tortor sapien. Sed maximus in sapien quis dignissim. Cras ut leo sed odio maximus euismod ac sed erat.

2a. Why not state the forceful quotation in the first sentence and then cite the case, omitting the explanatory parenthetical? (Assuming the quotation is actually forceful and important—not merely background. And if it’s merely background, why quote it?)

 The Texas Supreme Court acknowledges that “[e]quitably adopted children have the same inheritance rights as biological children.” Flake v. Adams, 123 S.W.3d 456, 458 (Tex. 2011).  In pretium lorem sed elit rutrum maximus. Nullam venenatis semper est, et luctus est aliquam at. Vestibulum tempor vitae neque et volutpat. Maecenas commodo laoreet nulla vel porta. Fusce iaculis tortor ut pulvinar eleifend. Ut auctor risus a vehicula efficitur. In gravida, turpis et ornare gravida, orci quam vulputate urna, id tincidunt lectus ex pulvinar dolor. Proin ac tortor sapien. Sed maximus in sapien quis dignissim. Cras ut leo sed odio maximus euismod ac sed erat.

3. Missed chance: Constructing a descriptive, explanatory paragraph that builds to a concluding statement of a legal doctrine or concept.

In pretium lorem sed elit rutrum maximus. Nullam venenatis semper est, et luctus est aliquam atus. Gomez v. Gomez, 234 S.W.3d 567, 570 (Tex. 2012). Vestibulum tempor vitae neque et volutpat. Maecenas commodo laoreet nulla vel porta. Fusce iaculis tortor ut pulvinar eleifend. Flake v. Adams, 123 S.W.3d 456, 458 (Tex. 2011). Ut auctor risus a vehicula efficitur. In gravida, turpis et ornare gravida, orci quam vulputate urna, id tincidunt lectus ex pulvinar dolor. Proin ac tortor sapien. Sed maximus in sapien quis dignissim. Bradley v. Kang, 343 S.W.3d 282, 289 (Tex. 2013). Cras ut leo sed odio maximus euismod ac sed erat. Consequently, Texas common law recognizes promise and performance as the elements of equitable adoption.

3a. Why not begin the paragraph with the statement, describe and explain, and then reiterate the doctrine or concept at the end?

 Texas common law recognizes promise and performance as the elements of equitable adoption. In pretium lorem sed elit rutrum maximus. Nullam venenatis semper est, et luctus est aliquam atus. Gomez v. Gomez, 234 S.W.3d 567, 570 (Tex. 2012). Vestibulum tempor vitae neque et volutpat. Maecenas commodo laoreet nulla vel porta. Fusce iaculis tortor ut pulvinar eleifend. Flake v. Adams, 123 S.W.3d 456, 458 (Tex. 2011). Ut auctor risus a vehicula efficitur. In gravida, turpis et ornare gravida, orci quam vulputate urna, id tincidunt lectus ex pulvinar dolor. Proin ac tortor sapien. Sed maximus in sapien quis dignissim. Bradley v. Kang, 343 S.W.3d 282, 289 (Tex. 2013). Cras ut leo sed odio maximus euismod ac sed erat, thus supporting promise and performance as the elements of equitable adoption.

4. Missed chance: Building an argument with legal analysis and concluding the paragraph with the key assertion.

In pretium lorem sed elit rutrum maximus. Nullam venenatis semper est, et luctus est aliquam at. Vestibulum tempor vitae neque et volutpat. Maecenas commodo laoreet nulla vel porta. Fusce iaculis tortor ut pulvinar eleifend. Ut auctor risus a vehicula efficitur. Flake v. Adams, 123 S.W.3d 456, 458 (Tex. 2011). In gravida, turpis et ornare gravida, orci quam vulputate urna, id tincidunt lectus ex pulvinar dolor. Maecenas vel eros quis sem porta pellentesque eget quis neque. Phasellus pretium eros ac vestibulum tincidunt. Pellentesque non dui maximus tortor tristique tempor vel sollicitudin leo. Proin ac tortor sapien. Sed maximus in sapien quis dignissim. Cras ut leo sed odio maximus euismod ac sed erat. Therefore, Chris Jaramillo should be awarded an equal share of the estate of Ron Jaramillo.

4a. Why not begin the paragraph with the key assertion, use legal analysis to support that position, and then reiterate the assertion at the end?

 Chris Jaramillo should receive an equal share of the estate of Ron Jaramillo. In pretium lorem sed elit rutrum maximus. Nullam venenatis semper est, et luctus est aliquam at. Vestibulum tempor vitae neque et volutpat. Maecenas commodo laoreet nulla vel porta. Fusce iaculis tortor ut pulvinar eleifend. Ut auctor risus a vehicula efficitur. Flake v. Adams, 123 S.W.3d 456, 458 (Tex. 2011). In gravida, turpis et ornare gravida, orci quam vulputate urna, id tincidunt lectus ex pulvinar dolor. Maecenas vel eros quis sem porta pellentesque eget quis neque. Phasellus pretium eros ac vestibulum tincidunt. Pellentesque non dui maximus tortor tristique tempor vel sollicitudin leo. Proin ac tortor sapien. Sed maximus in sapien quis dignissim. Cras ut leo sed odio maximus euismod ac sed erat, confirming that Chris Jaramillo should be awarded an equal share of Ron Jaramillo’s estate.

 

 

Emotional language in briefs

You can’t avoid it entirely; but try to reduce it.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

It’s common sense that overtly emotional language is ineffective in persuading judges. The experts say so:

  • “Judges are innately skeptical about appeals to emotion.”[1]
  • “Do not use emotional rhetoric…”[2]
  • It typically won’t “play well” to engage in “a blatant appeal to sympathy or other emotions…. Before judges, such an appeal should be avoided.”[3]

A recent research article supports that advice. The authors, three linguists and a lawyer, assert that judges “respond to briefs that are less emotional … because they convey more credibility.”[4] The article, The Role of Emotional Language in Briefs Before the U.S. Supreme Court, was published in 2016. In it, the authors calculated the rates for “emotional language” in the briefs and “analyzed how each Supreme Court Justice voted in 1,677 orally argued cases decided during the Court’s 1984-2007 terms, … focus[ing] on cases that included only a single initial merits brief submitted by each party.”[5]

In calculating the rates, the authors relied on a list of 919 words and word stems that experts deem “emotional.” To ensure that the results weren’t driven by other variables, they also attempted to control for the existence of lower-court dissenting opinions, the briefs’ use of legal authority, the quality of the attorneys writing the briefs, the parties’ status and resources, the presence of amicus briefs, the potential for “ideological congruence” between one party and a justice, and more.

The results aren’t surprising. The lower the rate of emotional language, the more likely the brief would get a justice’s vote:

  • “For petitioners, using minimal emotional language is associated with a 29% increase in their probability of capturing a justice’s vote. For respondents, … using minimal emotional language is associated with a 100% increase in their probability of winning a justice’s vote.”[6]

The authors don’t make strong causal claims, but the correlations offer significant support.

Applying the wisdom learned from this article can be tricky, though, and it’s because of the 919 words and word stems that are deemed “emotional.” I’ll show some examples of the listed words, and then offer some advice. (See the full article and word list here.)

Not every word in the list is overtly emotional. The following listed words are deemed “emotional” but are routine enough that they could easily appear in many persuasive legal documents:

  • active
  • advantage
  • alone
  • appreciate
  • assure

On the other hand, some listed words carry obvious emotional impact and are the kind legal writers might reduce or avoid in persuasive writing:

  • agony
  • appalling
  • arrogant
  • awesome
  • awful

Meanwhile, some words on the list have particular meanings within the law and could be difficult to avoid. Here five examples with a parenthetical filling out a common legal phrase:

  • abuse (of discretion)
  • accept (an offer)
  • adverse (party)
  • agree (to purchase)
  • award (damages)

And these examples are only from the letter A. Get the picture? You can’t simply adopt the authors’ list and systematically exclude those 919 words. Besides, the authors themselves acknowledge that not all emotional language can or should be eliminated.[7]

So my advice is to exercise editorial judgment. When you edit your persuasive writing, you know the topic you’re addressing and the stakes; you probably also have a sense of the judge’s temperament. Given that, in general, judges prefer writing that uses fewer emotional words, replace or delete those that are the most obviously emotional, but keep the routine and necessary legal terms.

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My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

[1] Stephen V. Armstrong & Timothy P. Terrel, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 289 (3d ed. 2009).

[2] Tessa L. Dysart, Hon. Leslie H. Southwick, & Hon. Ruggero J. Aldisert, Winning on Appeal 29 (3d ed. 2017).

[3] Antonin Scalia & Brian A. Garner, Making Your Case: The Art of Persuading Judges 31 (2008).

[4] Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, & Eve M. Ringsmuth, The Role of Emotional Language in Briefs before the U.S. Supreme Court, J. of Law and Courts 377, 384 (Fall 2016).

[5] Id. at 384.

[6] Id. at 378.

[7] Id. at 397.

Both parallel and pleasing

Mastering correlative conjunctions

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

Have you ever given much thought to the pairs of words we use to create parallel constructions that make for pleasing prose? Like this:

  • The argument was not only long but also boring.

and this:

  • Counsel may either agree with or oppose the decision.

The boldface words are called correlative conjunctions, and they come in pairs. Here are the most common:

  • both … and
  • either … or
  • neither … nor
  • not only … but also

Those are the most commonly used correlative conjunctions, but there are others. Some sources add these:

  • if … then
  • just as … so [also]
  • whether … or

Legal-writing expert Bryan Garner lists six more for a total of 13.[1]

Here I’ll focus on the four most common and address two rules professional legal writers follow when using correlative conjunctions.

The most important rule is that the part of speech that follows the first conjunction must also follow the second. That is, if a verb follows the first conjunction in the pair, a verb must follow the second conjunction. So below, A and B must be the same part of speech:

  • both A … and B
  • either A … or B
  • neither A … nor B
  • not only A … but also B

A and B must be syntactically identical: both nouns, both verbs, both prepositions, and so on. Some examples:

Not this:    Many lawyers are not only smart but also think creatively.

  • Smart (adjective) and think (verb) are not the same part of speech.

 But this:    Many lawyers are not only smart but also creative.

  • Smart and creative are both adjectives.

Another example:

Not this:    The court was neither willing to look at the owner’s acts in creating a hazard nor at the dangers created when customers knocked items onto the floor.

  • The faulty correlative parallelism arises because neither precedes willing (verb) and nor precedes at (preposition).

 But this:    The court was willing neither to look at the owner’s acts in creating a hazard nor to consider the dangers created when customers knocked items onto the floor.

  • The correlative conjunctions are now parallel: neither to look … nor to consider.

 Or this:     The court was willing to consider neither the owner’s acts in creating a hazard nor  the dangers created when customers knocked items onto the floor.

  • The correlatives are parallel: neither the … nor the.

On to the second rule. A minor writing error occurs when writers use nor for the second phrase or clause in a sentence that did not begin with a phrase or clause using neither, like this:

  • The Court did not review the pleadings nor discuss the arguments.

That example misuses nor. Why? Bryan Garner says that in these constructions, “or is generally better than nor.” The initial negative—not in our example, “carries through to all the elements ….”[2] So the sentence is preferably written this way:

  • The Court did not review the pleadings or discuss the arguments.

This problem with nor goes away if you break the one sentence into two and are willing to begin with nor:

  • The Court did not review the pleadings. Nor did it discuss the arguments.

One more pointer. Don’t forget that with constructions using or or nor, the verb agrees in number with the nearest subject—the one right before the verb. So in the following examples, the verb check should agree with husband:

Not this:    Every night, either the defendant or her husband check that the store alarm is set.

But this:    Every night, either the defendant or her husband checks that the store alarm is set.

Granted, the rules discussed here are fine points, but professional legal writers follow them because they create parallel structures that are clear and pleasing to read.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

[1] Bryan A. Garner, Garner’s Modern English Usage 225 (4th ed. 2016).

[2] Id. at 632.

Reducing legal-writing clutter with (cleaned up)

Have you heard of (cleaned up)—the daring new explanatory parenthetical?

Suppose you’re writing a piece of legal analysis and you need to quote a case that’s quoting another case. And suppose you choose to omit some words and alter the original a bit. Under Bluebook rules, you’d cite the case you’re quoting as well as the underlying source, and you’d show every alteration and omission. Those are the rules. So you might end up with something like this:

The Court has previously observed that “[t]he failure to affirmatively establish the fact sought does not ‘prevent the cross-examination from having . . . probative value in regard to the witness’s credibility.’” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (quoting Cawdery v. State, 583 S.W.2d 705, 710 (Tex. Crim. App. 1979)).

But what if you could delete the brackets, the ellipses, and the quotation within a quotation? What if you could omit the underlying source and the parenthetical it’s embedded in? Would that be okay, as long as you told the reader you “cleaned up” what would otherwise be a messy quotation? If you did, it might look like this:

The Court has previously observed that “the failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness’s credibility.” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (cleaned up).

That cleaner, neater version was the goal of attorney Jack Metzler when he invented the “cleaned up” explanatory parenthetical in 2017. Metzler has also written a law-review article about (cleaned up). The idea was to make quotations easier to read and to reduce words and bibliographic clutter. So this original—

Above all, “[c]ourts presume that the Legislature ‘ “understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.” ’ ” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968) (quoting Texas Nat’l Guard Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939))).

would look like this—

Above all, “courts presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems manifest by experience, and that its discriminations are based on adequate grounds.” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (cleaned up).

Metzler’s idea was a hit. Lawyers and judges have started using (cleaned up), and it has appeared in dozens of appellate briefs and judicial opinions in Texas, as well as in other state courts and federal courts. Metzler’s rules for (cleaned up) appeared in the Journal of Appellate Practice and Process, and they’re quoted in full at the bottom of this post. But here’s a quick summary: Using (cleaned up) means that in quoting, the author—

  • has removed extraneous, non-substantive material such as brackets, quotation marks, ellipses, footnote numbers, and internal citations,
  • has changed capitalization without indicating the changes, and
  • has made changes that enhance readability while otherwise faithfully reproducing the quoted text.

Bottom line: using (cleaned up) makes quoting and citing easier and aids reading, too.

But beware. When you use (cleaned up), your credibility is on the line. You’re saying, “I haven’t altered this quotation unethically, and I haven’t done anything dishonest or underhanded.” If you use (cleaned up) to change the quotation in ways that misrepresent the original text, your credibility is gone.

Of course, that’s true of anything you cite or quote: if you’ve exaggerated, fudged, or lied, someone—judge, staff attorney, clerk, opposing counsel—will find you out. So consider (cleaned up) and join me in hoping the next edition of the Bluebook takes note.

Get Wayne Schiess’s books:

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Plain Legal Writing: Do It

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Proposed Bluebook Rule 5.4: Cleaning up Quotations:

(a) Cleaning up. When language quoted from a court decision contains material quoted from an earlier decision, the quotation may, for readability, be stripped of internal quotation marks, brackets, ellipses, internal citations, and footnote reference numbers; the original sources of quotations within the quotation need not be cited parenthetically; and capitalization may be changed without brackets. Indicate these changes parenthetically with (cleaned up). Other than the changes specified, the text of the quotation after it has been cleaned up should match the text used in the opinion cited. If the quotation is altered further, indicate the changes or omissions according to Rules 5.2 and 5.3.

(b) Cleaning up intermediary case citations. In addition to the alterations described in Rule 5.4(a), when a quoted passage quotes a second case quoting a third case, the citation to the middle case may be omitted to show that the first court quoted the third. To indicate this change, retain the quotation marks around the material quoted from the third case and any alterations that were made to the quotation, and insert (cleaned up) before the “quoting” parenthetical citation to the third case. Indicate any alterations that were made to language quoted from the third case according to Rules 5.2 and 5.3.

Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154-55 (2017).