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.

Beginning with “but”

There’s no rule against beginning a sentence with but.

Sure, it’s a wise admonition from middle-school English teachers that novice writers avoid beginning a series of sentences with but.

  • In July we went to Six Flags. But it rained that day. But my mom said we could go again later. But by August, we didn’t have time. But I really wanted to go.

In high school, many English teachers embrace the beginning but. My son’s 9th-grade English teacher included “beginning with a conjunction” in a list of writing techniques, offering this example, But how could this be? and requiring students to create their own examples.

(By the way, you need no comma when you begin with but. Notice the examples in this post: no comma after but.)

What? Teaching kids it’s okay to begin a sentence with but? No wonder writing skills are in decline and college students (not to mention law students) don’t write well.

But wait.

I applaud this high-school teacher, and he’s in line with the general view of numerous writing authorities.

I’ve made this point before: Lite Connectors, Austin Lawyer 13 (Dec. 2008 / Jan. 2009). I won’t rehash the sources I quoted there, but I’ll refer you to Bryan A. Garner, On Beginning Sentences with But, Mich. B.J. 43 (Oct. 2003); The Chicago Manual of Style (“a perfectly proper word to open a sentence”); and the Internet, where a Google search for “beginning with but” turns up many reputable authorities recommending the practice.

As with many writing “rules,” the truth is that beginning with but isn’t about wrong or right; it’s about formality, emphasis, and style. So don’t uncritically apply this nonrule. Think about your writing goals and options and decide how you want to use the language.

Let’s start with formality. Although we should be comfortable beginning with but in e-mail messages, print correspondence, and inter-office memos, some lawyers avoid the practice in formal documents like motions, briefs, and judicial opinions. Yet the technique has been used in formal legal documents for centuries. Here are some examples.

From a judicial opinion in 2013:

  • “But this case has nothing to do with federalism.” City of Arlington v. FCC, 569 U.S. 290, 305 (2013).

From a judicial opinion in 1901:

  • “But this is not sufficient.” Colburn v. Grant, 181 U.S. 601, 607 (1901).

From a judicial opinion in 1793:

“But this redress goes only half way.” Chisholm v. Georgia, 2 U.S. 419, 422 (1793).

From an appellate brief in 2003:

  • “But the EPA cannot claim that ADEC’s decision was unreasoned.” Alaska Dept. of Envtl. Conservation v. EPA, 2003 WL 2010655 at 46 (U.S. Pet. Brief 2003).

And from the U.S. Constitution:

  • “But in all such Cases the Votes of both Houses shall be determined by yeas and Nays . . . .” U.S. Const. art. I, § 7.

In fact, the Constitution has seven sentences beginning with but.

If we accept that beginning with but is appropriate for formal legal documents, then it becomes a tool we can use to manage emphasis. Using the example from Arlington v. FCC, note the differing emphases in these three versions:

  1. But this case has nothing to do with federalism. (succinctly emphasizes the contrast)
  2. However, this case has nothing to do with federalism. (contrasts but moves more slowly)
  3. This case, however, has nothing to do with federalism. (even slower and emphasizes this case)

You can do more than use the technique for emphasis. Once you’re comfortable beginning with but, you can use it to create readable, crisp transitions that quickly orient the reader to a change of direction. For crisp transitions, yet is a great word to begin with, too.

From a judicial opinion in 1968:

  • “Yet we see no possible rational basis.” Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73, 75 (1968).

Yes, you can begin with however or in contrast or on the other hand. They’re fine. But now we know that beginning with but is fine for formal legal documents, gives us a tool for managing emphasis, and makes a great connector.

After all, there’s no rule against beginning a sentence with but.

A View of Seven Writing “Rules”

Based on 200 responses from people who teach legal writing:

It’s a rule
Sensible
suggestion
Mistaken
or misguided
Do not begin a sentence with but. 5% 26% 69%
Do not begin a sentence with and. 11% 28% 61%
Do not begin a sentence with however. 1% 22% 77%
Do not end a sentence with a preposition. 16% 37% 47%
Do not split an infinitive. 9% 32% 59%
Do not split a verb phrase. 2% 26% 72%
Do not separate a be verb from its complement. 3% 21% 76%

Here’s what I think:

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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.

Write Better Faster

Six tips and techniques

A recurring question I get from lawyers, law students, and other readers is how to implement the best writing advice while writing under harsh deadlines and heavy workloads. “I want to write better,” these lawyers say, “and I know the things you recommend are good. But I just don’t have the time.”

A variation of this question is this comment: “Even if I had the time, the client won’t want to pay my fee if I take the time necessary to implement all the writing techniques you recommend.” So the ultimate question is this: “How can I write better faster?”

I present here some  advice I usually give combined with the best ideas from real lawyers who deal with real clients and real deadlines.

Spend time on an outline. But outlining will slow things, down, right? No. A good outline, especially one that has complete sentences, will make the composing go faster, according to the author of The Psychology of Writing, Ronald Kellogg.[1] The more detailed the outline, the faster the composing will go. The better the outline, the less time you’ll have to spend re-ordering. The earlier you start the outline, the more payoff you’ll get from outlining.[2]

Learn to compose rapidly. Get a draft down fast by shutting out your internal editor or “judge.” Save editing for later. Just write, and write fast. Compose in quiet or after work hours, away from distractions. And try training yourself to type faster—75 words per minute at least. If you’re unable to improve your typing speed (and I’ll confess it’s been tough for me), try voice-recognition software. I once brought a major project in on time by speaking it into voice-recognition software. Yes, I was working from a detailed outline.

Raise your writing IQ. Attend legal-writing CLE courses, read books on legal writing, and study the best sources on English and legal-word usage. Your goal is to speed up both composing and editing. The more you know, the fewer writing slips you’ll make while composing. And although you’ll never consider a first draft a final product, your first drafts will get better and better. So then you’ll save time on editing, too.

Thoroughly understand the material (or write what you know). Writing goes faster if you know the subject well. For example, when I writing about legal writing, I zoom. When I write about a topic that’s new to me, I plod. It’s natural. So if you’re not consistently able to write about subjects you know well, you must master the material in order to write quickly.

Establish and stick to deadlines. Create and follow a routine for completing all major writing projects, with deadlines for researching, outlining, composing, and editing-revising. For editing, create an evolving checklist of everything you know you’ll need to check. As you raise your writing IQ and as you work and re-work your routine, your editing checklist will grow—but also shrink.

Stop making excuses. Don’t blame mediocre writing on short deadlines or heavy workloads. Find a way to make the time to edit and revise extensively; revising is the only way to make mediocre writing good and good writing great. Work late, work weekends, or eat the hours if you think the client won’t pay. Even decline projects if you must. But do the work necessary to produce a well-polished product. If you do it right every time, you’ll get faster at doing it right. If you never or rarely do it right, you won’t get faster.

I hope one or more of these techniques will work for you, so you can write better faster.

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

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[1] Ronald T. Kellogg, The Psychology of Writing 125-26, 130-31 (1994).

[2] Wayne Schiess, Should You Outline? Austin Lawyer 11 (Oct. 2015); Wayne Schiess, Outlining Effectively, Austin Lawyer 11 (Nov. 2015).