the (new) legal writer

Do stories really persuade?

Many good CLE programs for litigators include panels of judges, who tell the attending lawyers the kinds of argument and behavior that judges like to see or don’t like to see. I appreciate these opportunities, since judges are the people I’m trying to persuade. But I’ve often wondered whether these presentations are answering the right question. While I want the judges to like me, I want even more to win. And I’ve wondered whether what judges like is really the same as what persuades them.

So I salute Prof. Ken Chestek of the Indiana University School of Law.¹ He recently conducted a study, trying to determine empirically whether a brief with an element of storytelling is more persuasive or less persuasive than a purely logical, law-driven brief—one that omits the interesting but perhaps legally irrelevant story. He published the results of his study in an article that you can download here. Although (as Prof. Chestek acknowledges) the sample size may be too small to draw definitive conclusions, the study’s results suggest that storytelling makes for a more persuasive brief.

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¹ Another reason I salute Prof. Chestek is that he is a man who supports his home team and honors his bets. For that story, visit Legal Writing Prof Blog.

Foreshadowing and the science of persuasion

If your job involves persuading people through the written word, then you should read Something Judicious This Way Comes by Prof. Michael J. Higdon. In this paper, Prof. Higdon explores the use of foreshadowing in narrative, its effect on people’s perception of what they see and hear, and the scientific explanation of how it works. Most important for legal writers, he gives examples of how judges use foreshadowing to make their rulings more acceptable to readers. Lawyers can use the same techniques to make their arguments more acceptable to judges.

Due to its thoroughness, the paper is a bit long—44 pages—but well worth your time. Download it now from SSRN, save it on your hard drive or print out a hard copy, and read it later when you have the time.¹

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¹ Extra points to anyone who spots the foreshadowing in this paragraph.

Two propositions

Here are two propositions to ponder. One day I will write an essay on one or the other or both. But “one day” has been a long time coming, and may yet be a long time coming. So I’ve decided to go ahead and air them now, without supporting reasons, to see what you think. Here goes:

1. Every lawyer is presumed to be full of bullshit until he or she proves otherwise.


2. Argument is not the same as persuasion. Argument, properly done, is necessary to persuasion. But argument alone does not persuade. Improper or inappropriate argument impedes persuasion.

Comments, anyone?

Metaphor: Theory and practice

Prof. Michael R. Smith, legal-writing director at the University of Wyoming College of Law, has written an interesting article analyzing the ways metaphors are used in legal writing and offering practical suggestions for advocates to develop rhetorical strategies around them. Click here to read the abstract and to find links to download the article (12.3 MB PDF file).

Persuasion in 2,500 easy steps

ChangingMinds.org is a web site covering “all aspects of how we change what others think, believe, feel and do.” Go there and wander around a bit; you’ll probably learn something you didn’t know. (Hat tip: Visual Thesaurus.)

Dialectic

This morning’s post about the Conan brief prompted me to remember Hegel’s theory of dialectic, something I learned in seminary philosophy courses back in the 1970s. Professor Eric Steinhart sums up the process of hegelian dialectic this way:

“Hegel stresses the paradoxical nature of consciousness; he knows that the mind wants to know the whole truth, but that it cannot think without drawing a distinction. Unfortunately, every distinction has two terms, every argument has a counter-argument, and consciousness can only focus on one of these at a time. So it fixes first on the one, then under pressure fixes second on the other, until it finally comes to rest on the distinction itself. Hegel refers to this process of alternation and rest as dialectic. Dialectical motion has three stages: THESIS, ANTITHESIS, and SYNTHESIS.”

Analyzing the arguments about emotion in a legal brief in hegelian terms, we might see:

Thesis: MoneyLawyer’s argument.
Antithesis: Scott Greenfield’s counterpoint.
Synthesis: Bryan Garner’s recommendations for evoking an emotional response.

Notice the persuasive power of the dialectic. When three viewpoints are presented in dialectical fashion, the synthesis usually appears to be the most sensible of the three. In The Conan Brief, if you read all three positions, you probably concluded that Garner’s is the best, and not just because he’s Garner.

Appellate judges sometimes use dialectical reasoning: examining each of two opposite positions, identifying the advantages and disadvantages of each, and fashioning a new rule of law designed to retain the advantages while avoiding the disadvantages. But lawyers rarely use such arguments. Indeed, dialectical reasoning is probably not apt for most legal arguments. But if you’re arguing the rare case that will make law, you might consider a dialectical argument, to present your proposed rule of law as the most reasonable.

Literary rhetoric and judicial writing

Do literary citations have a place in legal writing? It does, says John M. DeStefano, III. In his recently published article, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (2007), he explores the uses and misuses of literature in written judicial rhetoric. Here’s the synopsis:

This Note surveys the courts’ use of poetry, fiction, and drama to develop substantive law. Combining the premises of legal realism and literary criticism, the Note rejects the position held by Judge Posner and other critics that literature is too subjective to offer the law legitimate substantive guidance. As caselaw examples demonstrate, the subjectivity of great writing can provide judicial opinions with a unique view to the complexity of life.

(Hat tip to Legal Writing Prof Blog.)

Have some pun

Do puns have a place in legal writing? Fifth Circuit Judge John R. Brown evidently thought so. Consider his opinion in Wood v. Diamond M Drilling Co., 691 F.2d 1165 (5th Cir. 1982) (sorry, can’t find a free copy on line), in which he riffs on the defendant’s name:

I. Diamond and the Roughneck
In exploring the many facets of this case, we begin with the DIAMOND M NEW ERA, a semi-submersible drilling rig owned by the defendant, Diamond M Drilling Company (Diamond). Mounted in the sapphire seas off the coast of New Jersey, Diamond's ERA is but one of many such rigs found along the Atlantic's jewelled coast....
...

II. Diamond is for Error
A. Loss of Future Earnings
Diamond argues that the jury’s award of $200,000 for loss of future earnings was excessive.... Diamond’s argument is flawed.
...
... We are not shocked, or dazzled, by what Diamond would have us believe is a forty-carat award....
...

Diamond polishes off its appeal by arguing that the District Court’s award of $30 per day maintenance was excessive.

Believe it or not, the pun is a time-honored rhetorical device. The Greeks didn’t call it a pun, though. They called it paronomasia. According to Silva Rhetoricae, paronomasia means “Using words that sound alike but that differ in meaning (punning).” Silva Rhetoricae lists several other devices for having fun with words while persuading people, including these:

• Adnominatio (which sounds Latin to me): assigning to a proper name its literal or homophonic meaning. For examples, see the Wood decision by Judge Brown.

• Antanaclasis: repetition of a word in two different senses. Example: “If we don't hang together, we'll hang separately.”

• Syllepsis: Using a word understood differently in relation to two or more other words, which it modifies or governs. Example: “There is a certain type of woman who’s rather press grapes than clothes.”

Metaphor

Anastasia wrote an interesting post two days ago on Lawsagna, discussing the "watery" metaphors often used in fiscal discussions (e.g. laundered money, liquid assets, float a loan, flood the market, cash flow), and "wonder[ing] about the effects of metaphors on our thinking and learning." The post reminded me of an article by Prof. Linda Berger, published two years ago in the Journal of the Association of Legal Writing Directors, titled What is the sound of a corporation speaking? How the cognitive theory of metaphor can help lawyers shape the law. Prof. Berger argues that

better understanding of metaphor's cognitive role can help lawyers shape the law. According to cognitive theory, metaphor molds our understanding, our reasoning, and our evaluation in persuasive and invisible ways. If metaphor is not merely a literary device but instead creates meaning, it is a particularly powerful and inescapable method of using language to persuade. To argue against a dominant metaphor, lawyers must be able to uncover it; to argue for a new metaphor, lawyers must be able to imagine it. Studying the work of cognitive researchers builds such perception and imagination: the more we know about the work of the mind, the use of language, and the means of persuasion, the more critical, insightful, and persuasive we can be.

"I have a dream."

Today is a good day to visit American Rhetoric, which has a page devoted to Martin Luther King Jr.'s "I have a dream" speech, including both a video and the text of the speech. Besides being historic and inspirational, the speech is a fine example of rhetoric — in this case rhetoric in the service of moral persuasion. (Hat tip to Slaw.ca.)

A good example of Dr. King's rhetorical writing is his Letter from a Birmingham Jail. This letter is Dr. King's response to southern clergymen who questioned the wisdom and timeliness of his protests. In the letter, Dr. King employs rhetoric not only to justify the righteousness of his own actions, but also to prick the conscience of the clergymen. This too is a textbook example¹ of rhetoric used for moral persuasion.
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¹ The textbook is Classical Rhetoric for the Modern Student, pp. 301-19 and 478-83 (4th ed. 1999), by Edward P.J. Corbett and Robert J. Connors.