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.