What’s the best lure?

Conventional thought is that the best CLE presenters are judges, because judges are the people that advocates are trying to persuade. An often-cited authority for this thought is a 1940 essay by John W. Davis, making an analogy between persuasion and fishing:

[A] discourse on the argument of an appeal would come with superior force from a judge who is in his judicial person the target and the trier of the argument .... [S]uppose fishes had the gift of speech, who would listen to a fisherman's weary discourse on fly-casting, the shape and color of the fly, the size of the tackle, the length of the line, the merit of different rod makers and all the other tiresome stuff that fishermen talk about, if the fish himself could be induced to give his view on the most effective methods of approach. For after all it is the fish that the angler is after and all his recondite learning is but the hopeful means to that end.

John W. Davis, “The Argument of an Appeal" (1940), in Classic Essays on Legal Advocacy 212, 212 (George Rossman ed., 2010); and in 3 J. of App. Prac. & Process 745, 745 (Fall 2001).

Certainly judges’ insights are valuable. I always enjoy their presentations at CLE events, and I always learn something from them. A few times, I’ve been on CLE panels with judges and thorougly enjoyed working with them. My list of recommended books on this blog’s home page includes four by judges.

Having said that, I think there’s a built-in limit to what we can learn from the people we want to persuade. The limit is this: Unless those people are extremely self-aware, they will know, and therefore be able to talk about, only what works on a conscious level. They probably won’t know what persuades them on a subconscious level. And the stuff that works on a subconscious level is highly effective.

So by all means, listen to judges at CLE events. Read their books on effective advocacy. Practice what they teach. It will likely improve your advoccy.

But don’t stop there. Learn what works subconsciously to persuade people (including judges). Educate yourself on ancient rhetoric (it still works), cognitive psychology, and any other discipline telling us how people think and make decisions.

Remember that best lure is the one that the fish doesn’t recognize as a lure.

Reading recommendations for 2021

I’m starting the new year by reading Advanced Legal Writing: Theories and Strategies in Persuasive Writing by Michael R. Smith (2d ed. 2008). There’s actually a third edition out now, but it’s pricey. So I’m reading a “used” copy of the second edition that I picked up for $14. (Used is in quotation marks because it arrived in mint condition.) I’ve read enough of it to recommend it and to add it to the book list on the right side of this blog. The author, Professor Smith, believes the same things I do about persuasive legal writing: he bases his recommendations on classical rhetoric (logos, pathos, and ethos) and modern science, including cognitive psychology and linguistics. I’m only about 100 pages into it, and I’ve already learned some things I can apply to my next brief.

Next on my reading list is A Clearing in the Forest by Steven L. Winter (2001). I’ve been reading a lot lately about metaphor, including metaphor in legal writing.* Everything I’ve read about metaphor that’s been published since 2001 cites this book as the definitive study of metaphor in legal writing. Like any good researching lawyer, I like to go to the source.

A question and a challenge: What are you doing in 2021 to improve your writing skills?


James Geary, I Is an Other (2011); George Lakoff and Mark Johnson, Metaphors We Live By (1980, afterword 2003).

Fonts are more important for persuasion than you think.

Everyone should know that an attractive, highly legible font makes a good impression on the reader. But can font selection work on a deeper level, making your brief either more or less persuasive? It can.

This insight comes from a book I’ve been reading by Daniel Kahneman, Thinking, Fast and Slow. In one chapter, Kahneman describes the concepts of cognitive ease versus cognitive strain. Cognitive ease describes the reader’s state when the reader feels that the message is familiar, easy to accept, and true. Cognitive strain describes the opposite state, when the reader feels that the message is unfamiliar and more difficult to accept. As Kahneman describes it, “When you are in a state of cognitive ease, you are probably in a good mood, like what you see, believe what you hear, trust your intuitions, and feel that the current situation is comfortably familiar.” On the other hand, “[w]hen you feel strained, you are more likely to be vigilant and suspicious ....”

Many factors can contribute to the reader’s cognitive ease, including the reader’s good mood, sense of familiarity (the feeling, “I knew that”), and having been primed. Another factor is clear display: a message printed in a clear font on high-quality paper. Anything that you do to foster cognitive ease and reduce cognitive strain will make your message more persuasive.

One way to foster cognitive ease is to make the writing as legible as possible. This means using the highest quality, most legible font available, printed in an easily readable size on high-quality paper. Experiments have shown that a sentence printed in a highly readable font is more likely to be believed than the same sentence written in a less legible font.

That’s what Kahneman suggests. Here’s my additional suggestion: For first drafts, use an ugly, less legible font (such as Courier); wait for the final draft before converting to a gorgeous font. Why? Because when you are editing a first draft, you don’t want cognitive ease; you want cognitive strain. You want to induce skepticism and vigilance in your editors (including yourself). 

Kahneman describes an experiment where subject were given a set of three brain teasers to solve. Half of the subjects got the puzzles in a legible font; the other half got the same puzzles in a small font with poor contrast. The difference in the error rates was striking: 90% of subjects who got the puzzles in a legible font made at least one mistake; the error rate dropped to 35% when the font was barely legible.

So if you want your editors to read your drafts with a critical eye, don’t make the drafts impossible to read, but do make them a little harder to read than the final product. Put them in Courier. After the draft has been thoroughly edited, convert it to the best font available before finalizing.


p.s. (30 Aug. 2019): Several years ago, I wrote an article suggesting the use of ugly fonts for early drafts. Here’s a link to the PDF. 

Write like a president.

Oseid Communicators in ChiefThis book is next up on my reading list: Communicators-in-Chief by Julie Oseid, a law professor at the University of St. Thomas School of Law. In this book, Prof. Oseid examines the writing style and habits of five American presidents, focusing on one quality at which each excelled: Thomas Jefferson (metaphor), James Madison (rigor), Abraham Lincoln (brevity), Ulysses S. Grant (clarity), and Teddy Roosevelt (zeal). For each president, Prof. Oseid offers some biographical background, insights into his writing habits, and some examples of his best writing. There’s also a chapter on the presidents’ reading habits and favorite books.

Books I keep handy

Photo (54) books

Like any lawyer, my office at work has bookshelves full of books. But there are a few books that I refer to so often that I keep them literally within arm’s reach of my desk chair. Why? Because when in doubt, I always look it up. Also, when I have a difference of opinion with a colleague over matters of form or usage, I have an authoritative source handy to resolve it.

I don’t necessarily have the latest edition of some of these references. If a new edition is truly an improvement over the prior edition, I’ll invest in it. But in general, I figure that the important rules don’t change every other year. So I am happy to be a cheapskate and rely on the prior edition as long as it still works. Anyway, here they are. From left to right:

Two citation manuals: The Bluebook (17th ed.) and the ALWD Citation Manual. I use ALWD primarily because I find it better suited for practitioners, and because, where it departs from the Bluebook, I find its rules more sensible. Nevertheless, I keep the Bluebook handy for when I need to cite something so obscure and esoteric that it’s not covered by ALWD.

The Redbook, by Bryan A. Garner. The Redbook is not a citation manual; it is a style manual. Most of its comment reflects generally accepted rules and preferences; on a few points it reflects Garner’s preferences. But Garner is a good judge of these things. And it’s good to have and to follow some style manual, if only for consistency’s sake.

The Chicago Manual of Style (15 ed.). The CMS covers things that Garner doesn’t. It’s written for journalists, but it works well for anyone doing expository writing.

Black's Law Dictionary. Every law student needs one. Every practicing lawyer needs one. Enough said.

Garner's Modern American Usage. If there is another usage dictionary out there for writers of American English, I don’t know of it. Garner’s is thorough, good, and reliable.

Garner's Dictionary of Legal Usage. Admittedly, this book overlaps with Garner’s Modern American Usage. But it hits some areas, peculiar to legal writing, that the other doesn’t.

The dictionary on the end. This book was a freebie in my law firm’s supply room. So I picked up a copy and put it with the other handy references. My firm has a subscription to the on-line Oxford English Dictionary, so if I need the most serious English dictionary on the planet, I have it on my computer. But often, I just want to look up a spelling, or I just want to confirm that my idea of what a word means is what everyone else thinks it means. For those purposes, this is a serviceable dictionary.  (At home, I have Merriam Webster’s Collegiate Dictionary and The New Oxford American Dictionary.)

What I don’t have in my office, but probably should, is a handy grammar reference. I like A Grammar Book for You and I ... Oops, Me!, by Ed Good, but that is more a book to read cover-to-cover and learn from than to pull off the shelf when you need to look up something in 30 seconds. So if anyone knows of a solid, user-friendly grammar reference book, please leave a comment or send me an e-mail.

p.s. Spock and the tribble are lousy bookends. But they do frame the real bookends nicely.