Category Archives: Persuasion

Sentence length

Managing averages and maximums

My books: Legal Writing Nerd and Plain Legal Writing

Legal writing has a bad reputation for long sentences. Why?

Maybe reading cases in law school starts us off poorly. After all, the cases in casebooks weren’t chosen because they were beautifully written. Plus, legal writers often face short deadlines and might end up sacrificing some editing. And legal writers address complex matters—matters requiring explanation, qualification, and clarification.

But we can do better.

First, we can let go of the thought that a concept and everything that qualifies that concept must be in a single sentence:

[Lawyers] think that in order to achieve clear understandings, they must stuff every related idea into a single sentence between an initial capital letter and a final period. They are, of course, wrong.[1]

Second, we can educate ourselves. Here’s what the experts say about average sentence length and maximum sentence length.

Average sentence length

What’s a good average length? The experts say—

  • “below 25 words”—Richard Wydick[2]
  • “about 22 words”—Laurel Currie Oates & Anne Enquist[3]
  • “about 20 words”—Bryan Garner[4]

That’s the average—some shorter, some longer. All the experts quoted above agree that variety in sentence length is important. And when you write about complex subjects, push the length down: “The basic rule is this: The more complicated your information is, the shorter your sentences should be.”[5]

You can program Microsoft Word to tell you your average sentence length. Go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spell-check, you’ll see a display that includes your average sentence length, along with other information. (Note: a document with legal citations will usually show a shorter-than-actual average sentence length because of all the abbreviations and periods.)

Now ask yourself these questions: Is my average sentence length appropriate for the subject and the audience? Are all the sentences about the same length, or do I have good variation? Do I have too many short sentences, so that my writing is choppy? Based on your answers, edit your sentences.

Maximum sentence length

How many words is too long for one sentence? It’s a tough question, and the experts don’t offer much guidance. Here’s mine.

Are you confident you could write a readable, clear sentence of more than 45 words? I’m not sure I could, so that’s the limit I apply to my own writing. Of course, some gifted writers can create long sentences that are pleasant to read; they usually use lengthy parallel phrases in a series. That technique works well in literature. But for most of us doing legal writing, staying under 45 words will work better. When I write a single sentence that goes over 45 words, I usually break it up.

But it’s not realistic for a busy legal writer to count words while writing. When you’re writing your first draft, let your creative mind produce the text without interference from your internal editor. Let the text—and the ideas—flow.

Then shorten long sentences on the edit. When you encounter a single sentence that bogs you down, tires you out, or annoys you, highlight it and look at the word count. If the word count is over 45, re-work the sentence or break it up.

Those are the three goals for sentence length: readable average length, variation in length, and nothing too long.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Ronald L. Goldfarb & James C. Raymond, Clear Understandings: A Guide to Legal Writing 47 (1982).

[2] Richard Wydick, Plain English for Lawyers 36 (6th ed. 2019).

[3] Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 523 (5th ed. 2010).

[4] Bryan A. Garner, Legal Writing in Plain English 47 (2d ed. 2013)

[5] Steven D. Stark, Writing to Win: The Legal Writer 46 (2012).

Research on Persuasive Legal Writing

Three recent projects

My books: Legal Writing Nerd and Plain Legal Writing

When I first learned about persuasive legal writing, the advice was simple: avoid lying, follow the rules, reduce errors. Today, we have science, and many authors are publishing research studies that try to define persuasive legal writing scientifically. I summarize three here.

Brady Coleman and Quy Phung assembled a database of U.S. Supreme Court briefs filed from 1970 to 2004 and performed some calculations: they used the Flesch Reading Ease Scale, which assigns a readability score from zero (extremely difficult) to 100 (very easy); they also used the Flesch-Kincaid Grade Level, which assigns a number representing the years of education the reader would need to read the text comfortably (12 = high school graduate, 16 = college, etc.)

Their data show that U.S. Supreme Court briefs are becoming more readable. During the period of their study, they found that—

  • the Argument section’s readability increased from 33 to 39.
  • the Argument section’s grade level moved from 15 to 12.
  • the Statement of Facts’ grade level moved from 14 to 13.[1]

I’m not willing to believe that these briefs became “simpler” because the writers got dumber. Instead, I think lawyers are learning that readable briefs are more persuasive.

In another study, Shaun Spencer and Adam Feldman reviewed 654 summary judgment motions—trial briefs. They scored the briefs with 50 readability measures, assessing word difficulty as well as syllable, letter, and sentence counts, and they produced a readability score for each brief.

After controlling for multiple factors, internal and external to the briefs, the authors found that a brief’s readability was significantly correlated with success at summary judgment. Meaning: the easier your brief is to read, the more likely it is that you’ll win. The correlation was even stronger in federal court than in state court.

Specifically, if the moving party’s brief was significantly less readable than the nonmoving party’s brief, the moving party had only a 42% chance of winning. But if the moving party’s brief was significantly more readable than the nonmoving party’s brief, it had an 85% chance of winning.[2]

I should mention that you can assess the readability and grade level of your own writing. In Microsoft Word, go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spell-check, you’ll see a display that includes your Reading Ease score and grade level.

Finally, lawyers and legal-writing teachers have long believed that stories are persuasive, and now there’s evidence to prove it. This legal-writing expert, Kenneth Chestek, sent briefs written for a fictional case to 95 judges, clerks, staff attorneys, practitioners, and law professors.

Each reviewer received two briefs. In one brief, the argument had a narrative component—characters who encounter an obstacle and seek to overcome it—plus the legal argument. The other brief advocated for the same party but with only the legal argument; it had no narrative component. The author’s data showed that 64% found the narrative briefs more persuasive.[3] That’s a solid, nearly two-thirds majority in favor of story.

You probably knew this already, but now there’s science: when you need to write persuasively, science tells you to write readably and tell a story.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Brady Coleman & Quy Phung, The Language of Supreme Court Briefs: A Large-Scale Quantitative Investigation, 11 J. App. Prac. & Process 75, 98, 99 (2010).

[2] Shaun B. Spencer & Adam Feldman, Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success, 22 J. Leg. Writing Inst. 61, 94 (2018).

[3] Kenneth Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. Assn. Legal Writing Directors 1, 19 (Fall 2010).

Emphasis at the End

Using placement and subordination to create emphasis.

My books: Legal Writing Nerd and Plain Legal Writing

A criminal trial has ended and you’re at the penalty phase. If you’re Terry Chima’s defense lawyer, which would you rather hear the judge say?

  1. Terry Chima, I believe that you are genuinely sorry and sincerely committed to being a productive member of society, but the crime you committed warrants a significant punishment.
  2. Terry Chima, the crime you committed warrants a significant punishment, but I believe that you are genuinely sorry and sincerely committed to being a productive member of society.[1]

Most readers believe that example 2 is more favorable to the defense, inferring that it suggests a shorter, less drastic penalty, while example 2 implies a longer, harsher one. But why?

It’s because of placement.

Placement

Most writing experts believe that the end of a sentence is a place of emphasis. The concept stated at the end stays with the reader and receives extra punch. “End sentences with a bang, not a whimper,” according to Joe Glaser, the author of Understanding Style.[2] And the writing expert David Lambuth says that “the end is emphatic because it makes the last impression. What we hear last is usually the most vivid to us.”[3]

Ending placement is the key difference in examples 1 and 2. As the defense lawyer, when the sentence ends with “warrants significant punishment,” I get a bad feeling in my stomach. But if the statement ends with “sincerely committed to being a productive member of society,” my hopes for a lighter penalty rise.

Here’s another example. Which sentence suggests that the writer is more peeved with the judge?

3. Although the plaintiff’s lawyer lied about his client’s injuries, the judge did not sanction him.

4. Although the judge did not sanction the plaintiff’s lawyer, the plaintiff’s lawyer lied about his client’s injuries.

It’s subtle, but most readers perceive example 3 to be expressing frustration with the judge, and example 4 to be expressing frustration with the plaintiff’s lawyer. The difference arises from subordination. As Bryan Garner put it: “With subordination, the phrasing immediately shows that one clause is more important than the other. You’re amplifying the one and diminishing the other.”[4]

Subordination

As a sentence structure, subordination uses two clauses: a dependent clause that begins with a subordinating adverb, and a main clause. Some subordinating adverbs have to do with time—after, before, since, until, when, whenever, and while—but when used for emphasis, the most common subordinating adverbs are although, because, despite, even though, and though.

Although subordination can occur before or after the main clause, using subordination for emphasis typically arises from placing the idea to be de-emphasized in a beginning, subordinated clause, and the idea to be emphasized in an ending, main clause.

From example 3: The beginning subordinated clause is Although the plaintiff’s lawyer lied about his client’s injuries, and the ending main clause is the judge did not sanction him. Thus, the theory of emphasis through subordination goes like this: Typical readers give—

  • reduced emphasis to beginning, subordinated clauses,
  • extra emphasis to main clauses, and
  • extra emphasis at the end of a sentence.

So when you have two ideas to express, and you’d like to emphasize one, the recommendation is to begin the sentence with a subordinated clause containing an idea you want to de-emphasize, and end the sentence with a main clause containing the idea you want to emphasize.

Even though subordination isn’t a magic trick, it can produce subtle emphasis in a sentence.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Adapted from Patrick Barry, Good With Words: Writing and Editing 33 (2019).

[2] Joe Glaser, Understanding Style: Practical Ways to Improve Your Writing 190 (2010).

[3] David Lambuth, The Golden Book on Writing 26 (2d ed. 1983).

[4] Bryan A. Garner, LawProse Lesson #238: Are you coordinated or subordinated? (Nov. 2, 2019), http://www.lawprose.org/lawprose-lesson-238-are-you-coordinated-or-subordinated/

A Flowing Statement of Facts

Using topic sentences and headings

My books: Legal Writing Nerd and Plain Legal Writing

Many lawyers write memos, trial and appellate briefs, or briefs in administrative matters, and those documents contain a section called the Statement of Facts. Naturally, a Statement of Facts should be credible, ethical, and persuasive, but it should also flow—guiding the reader through the events in an easy-to-follow, coherent way. To accomplish those goals, legal writers can use two basic yet effective tools: topic sentences and headings.

Dates aren’t topics. I’ve seen Statements of Facts in which the first sentences of a series of paragraphs all begin with a date. The practice sometimes continues for three, four, or five paragraphs in a row. For example, three consecutive paragraphs might begin like this:

  • On September 30, 2019, …
  • On December 17, 2019, …
  • On February 22, 2020, …

Two problems: First, it’s common advice to omit a flurry of dates. “Avoid over-chronicling—most dates are clutter,” says Judge Mark Painter. “We don’t know what … if any, dates we should remember.”[1] Second, even when dates are relevant, they’re usually not important enough to justify giving them primary placement. When you begin a paragraph with a date, you’re implying that the date is important—topical. That’s usually not true.

So write a topic sentence that encapsulates the main idea of the paragraph. If you need chronology, work the date in later or use relative-time references:

  • BK Events catered a successful party for Mesa, Inc. in September 2019….
  • Three months later, Mesa contracted with BK to cater another party in May 2020….
  • Ultimately, in light of the Covid-19 pandemic, Mesa sought to cancel the contract on February 22, 2020….

Witnesses aren’t topics. I’ve seen Statements of Facts in which the first sentences of a series of paragraphs all begin with a name—often that of a witness. In a brief responding to a claim for benefits, three consecutive paragraphs might begin like this:

  • Cynthia Rao examined the claimant and testified that …
  • Robert Eaton, a psychiatrist, examined the claimant on …
  • Chris Serna, a vocational expert, interviewed the claimant …

Again, two problems: It’s good advice to avoid presenting the facts by witness. “Never include the deadly witness-by-witness summaries of testimony that some brief-writers favor,” says Judge William Whitbeck.[2] More to the point, the witnesses are rarely the topics you’re writing about, and if they aren’t, they don’t deserve primary placement.

Rather than giving witness names prominence in the opening sentence, create true topic sentences. Here, you could use the impairments that the claimant alleges, and other topics as appropriate. It might look like this:

  • The claimant asserted a physical impairment based on lumbar spinal stenosis….
  • A second alleged impairment, based a depressive disorder, relied on the testimony of psychiatrist Dr. Robert Eaton….
  • Yet a vocational expert testified that reasonable opportunities for work existed in the national economy….

For readability and flow, topic sentences often work better than focusing on dates and names.

Try headings. If the Statement of Facts is long or complex, you can aid the reader and improve the flow with headings. After all, few of us want to read long, unbroken blocks of text. You can use short topic headings with boldface text, initial capitals, and no punctuation:

  • Background
  • Previous Claims
  • Alleged Impairments

You can use point headings, too—typically boldface assertions using sentence case and ending with a period:

  • The psychiatrist’s testimony rebuts the claimant’s asserted impairment based on a depressive disorder.

Both techniques, topic sentences and headings, require thought and effort by the writer, but they pay off with a more readable and persuasive Statement of Facts.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Judge Mark Painter, The Legal Writer: 40 Rules for the Art of Legal Writing 33 (2d ed. 2003).

[2] Quoted in Bryan A. Garner, Judges on Briefing: A National Survey, 8 Scribes J. Legal Writing 1, 26 (2002).

Visuals in Briefs, part 3

Getting started—simply

Two previous columns discussed visuals as valuable tools for persuasion in briefs and how brief writers could overcome obstacles to using visuals. This month I offer some practical tips for using visuals and some simple ideas for creating them.

Two experienced practitioners-turned-legal-writing professors have written an excellent article full of good advice: “Art”-iculating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, by Steve Johansen and Ruth Anne Robbins.[1] They helpfully divide visuals into three categories: Organizational visuals such as bullet lists, timelines, and tables—even the Table of Contents; interpretive visuals such as flow charts, pie charts, and Venn diagrams; and representative visuals such as images and maps. They then ask writers to imagine the legal argument visually and identify what type of visual would aid the reasoning.[2]

Once you’ve decided to use a visual, Johansen and Robbins say it’s worth assessing where the visual falls on a “usefulness” continuum. On one end are merely decorative visuals—eye-catching but with limited connection to the substance. On the other end are visuals that present content connected to the facts or law.[3] Nix purely decorative visuals; visuals that contribute to the substance go in. I also recommend this article: Adam L. Rosman: Visualizing the Law: Using Charts, Diagrams, and Other Images to Improve Legal Briefs.[4]

Some simple examples of graphics

Last month I mentioned two reasons that some brief writers don’t use visuals: creating them can be difficult and time-consuming. So let’s start simple. Here are two ways to use one type of visual—images—in briefs, as recommended by respondents to my survey:

  • I mostly use screenshots of the contractual or other language I’m interpreting.
  • Many of mine are labeled photos—essentially, evidentiary documents but placed in the body text rather than in an appendix.

If using an image strengthens your case, do it.

Using a table is another way to start trying visuals, and tables are simple to create.

For example, you might display the defendant’s corporate officers in a two-column table. The information is more quickly and easily grasped than if it were conveyed in textual format—especially if the list is long.

Text: The corporation’s officers were as follows: The president was Chris Smith, the Vice President was Cory Chung, and the Secretary was Jamie Acosta.

Visual: The corporation’s officers were as follows:

In an administrative-hearing brief, one writer needed to apply a 12-factor test to a nurse’s conduct. A two-column table worked well, with the factors described in the left-column cells and the analysis provided in the corresponding right-column cells. It’s a good example of a visual that makes digesting the analysis easier when compared to a traditional-text format.

The following table appeared in a response to a plaintiff’s motion to consolidate. It was the writer’s attempt to emphasize that although the same party owned the apartment-complex phases at issue, the buildings, subcontractors, and materials differed, and the two cases would not rely on the same evidence.

Once you’ve mastered basic tables, a timeline is a good challenge. Here’s a basic example:

I hope these examples give you some ideas. Ultimately, it’s up to you to consider the facts and analysis and decide if a visual is right for your brief. Think creatively, get some help, improve your skills, and recognize that judges are favorably disposed to visuals. Then try it.

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[1] 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 (2015)..

[2] Id. at 67.

[3] Id. at 69.

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