Category Archives: Persuasion

Visuals in Briefs, part 2

In my survey of practicing lawyers, 30% said they rarely or never use visuals in briefs. Here are the top three reasons for not using visuals:

  1. My practice area doesn’t lend itself to visuals.
  2. I’ve never heard a judge recommend visuals.
  3. Creating visuals is time-consuming and difficult.

Let’s take these one at a time.

(1) If your practice doesn’t lend itself to visuals, then you’re not avoiding them because they don’t work at all; you’re avoiding them because they don’t work for the cases and issues you handle. Declining to use visuals is therefore an exercise of editorial judgment. That’s what legal writers should be doing.

The individual comments in the survey reflect the reality that good writers know their content, context, and audience and make decisions about visuals accordingly:

  • “I cannot see how visuals would meaningfully improve briefing in my case area (debt collection and debt defense).”
  • Most of my work involves day-to-day motion practice (e.g., motions to compel) that does not call for visuals.”
  • “The issues in my cases rarely lend themselves to persuasive visual display.”

I’m inclined to trust these lawyers and their judgments about their own cases.

(2) Actually, a few judges are recommending the use of visuals in briefs. The legal-writing expert Ross Guberman offers the following unattributed quotations from judges:

  • “Sometimes a timeline is clearer than an essay format.”
  • “The use of pictures, maps, and diagrams not only breaks up what can be dry legal analysis; it also helps us better understand the case ….”
  • “When a case involves analysis of a map, graph, or picture, I would like to see attorneys include a copy of the picture within the analysis section of the brief.”[1]

Judge J. Nicholas Ranjan, of the United States District Court for the Western District of Pennsylvania, offers the following advice on his website:

  • Use visual devices and tools to make things easier on your reader. … [Use] charts and graphics and timelines. For example, in a case where the timing of events is critical or convoluted, consider creating a timeline in the fact section.”[2]

In addition to the supportive statements quoted here, after posting my survey about visuals, I received two email messages from judges, saying that they appreciate the use of visuals in briefs and pointing out that they use them in their own opinions and orders.

Still, there’s no large, loud chorus of judges calling for more visuals. Yet 46% of those who rarely or never use visuals said that they would be persuaded to use them if judges recommended the practice. So if you’re a judge reading this, and you appreciate visuals, say so—publicly.

Besides judges’ recommendations, at least one other factor would encourage more writers to use visuals in briefs. One third of the survey respondents said they would be persuaded to use them if colleagues or leading practitioners recommended the practice. So if you’re a visuals-using writer reading this article, recommend the practice to others.

(3) Finally, 9% of survey respondents who rarely or never use visuals in briefs gave as a reason that using them was difficult and time-consuming. Here are some of the individual comments:

  • “Limited software skills.”
  • “Need software training.”
  • “Software to make it easier for me to design the graphics.”
  • “A quicker way to get them done.”
  • “Need to be easy to create, format, and insert.”
  • “Greater technological ease-of-use.”

This post can do little to remedy these problems, but I have some suggestions: assign visuals creation to others with the expertise, seek out training and education on creating and using visuals, and invest in newer or better software.

Besides, some of us might be thinking too grandly about “visuals.” In part 3, I’ll discuss some practical tips for using visuals in briefs, offer some simple ideas for creating visuals, and recommend additional resources.

_____

[1] Ross Guberman, Judges Speaking Softly, 44 Litigation 48, 49-50 (Summer 2018).

[2] Judge J. Nicholas Ranjan, Judge Ranjan’s Brief-Writing Preferences, at 2, https:/​/​www.pawd.uscourts.gov/​sites/​pawd/​files/​Ranjan_writing_tips.pdf.

Visuals in Briefs, part 1

Visuals can be valuable tools for persuasion in briefs.

Legal writers should use visuals as persuasive tools in their documents, and it’s already happening: In my survey of 133 lawyers, 70% said they frequently or sometimes use visuals in briefs. The survey targeted writers of persuasive documents at an initial-dispute stage: trials, administrative hearings, arbitrations, and others.

This article displays a simple pie chart showing the answers to survey question 2: “In writing briefs or other persuasive documents, do you ever use visuals: graphics, images, charts, tables, illustrations, and so on?

In part one of this series, I’ll discuss the recommendations in favor of visuals from experts and practicing lawyers.

As the survey results show, many legal writers are already using visuals in briefs. That only makes sense because those who research and write about using visuals have been recommending the practice for several years. Here are two experienced practitioners in 2019:

  • “Using images in briefs can be an effective tool for both catching and keeping the attention of a ‘wired’ judge or clerk and for increasing the persuasive force of your legal argument.”[1]

Here’s a 25-year in-house lawyer, writing in 2013:

  • “Well-crafted images—charts, diagrams, photographs—can make your briefs more interesting and persuasive ….”[2]

No, the written word isn’t dead, said two legal-writing professors in 2015, but “[a]s legal writing moves toward a more digital medium, it is time for lawyers to incorporate visual persuasion into their documents.… [Visuals users] are advancing legal writing in a positive direction.”[3]

My survey produced some supporting recommendations as well. In responding, writers could choose from a list of the potential benefits of visuals, and here are the top three responses:

  1. Sometimes visuals can convey concepts that text cannot;
  2. Sometimes using visuals is easier than describing something in the text; and
  3. Visuals add persuasive force to the document.

Survey respondents could also add comments, and there were several strong endorsements:

  • “Using graphics, charts, etc. can be very helpful to a brief and the judge’s understanding of the issues.”
  • “I use tables and charts as often as it makes sense. When I was clerking, I found graphics in briefs to be generally helpful. One table compared specific allegations in the complaint with what the plaintiff had ultimately presented on that point after discovery. The discrepancies were already glaring, but the table really nailed it.”
  • “I use tables and charts when they help organize the information: with multiple parties and I’m trying to display the differing facts about each one, in discovery disputes—breaking down the disputed-information categories, for financial information, and in timelines.”
  • “In a case with multiple claims and multiple defendants, I created a table in which each row was a specific claim against a specific defendant. In the columns, I briefly explained why that claim failed and cited a key case.”

To these endorsements we can add the obvious point that lawyers have used visuals for live trials and hearings for many years. It’s taken for granted that photos, maps, charts, and other visuals have a strong persuasive impact on judges and juries. So it’s not surprising that the same is true for briefs.

Yet 30% of my survey respondents said that they rarely or never use graphics in briefs. Why not? I’ll address that in the next part of this series.

_____

[1] Emily Hamm Huseth & Michael F. Rafferty, A Picture Can Save a Thousand Words: The Case for Using Images in Appellate Briefs, For the Defense 22, 23 (Feb. 2019).

[2] Adam L. Rosman, Visualizing the Law: Using Charts, Diagrams, and Other Images to Improve Legal Briefs, 63 J. Leg. Educ. 70, 70 (Aug. 2013).

[3] Steve Johansen & Ruth Anne Robbins, Art-iculating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 J. of the Leg. Writing Inst. 57, 59, 60 (2015).

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.

____

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.