#16 Why is Writing Style Important for Lawyers?

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A. Written persuasion provides the best opportunity to persuade a judge

American lawyers have used trial briefs and appellate briefs for a century or more. Even courts with strong oral traditions have shifted to written advocacy.

The Australian High Court provides an example. According to Justice Michael Kirby, in shifting to written argument:

• "Australian courts have changed, probably forever, the precise skills of advocacy that they enlist."¹

England, too, has "now moved so far in the direction of core arguments always being in written form"² that Justice Lightman has said:

• "Advocacy ...today ... transcends its traditional form of oral presentation in court and includes and finds critical expression in written forms in which expertise is called for of the advocate and which can have a decisive effect on the outcome of a case ... Counsel now requires expertise at least as much in preparing written skeleton arguments as in making oral submissions."³

According to Andrew Goodman, written advocacy in England (and Australia and America) now provides "an essential tool" that "enables you to damage your opponent without even opening your mouth".⁴ Written persuasion offers a "unique opportunity, not to be wasted".⁵ 

B. Your writing affects 3 classical persuasion processes

In Michael Smith's excellent book, Advanced Legal Writing, Smith explains the main persuasion processes from classical rhetorical theory: logic, emotion, and credibility. Your writing style can affect all these persuasion processes.

First, if you do not write clearly, your audience will not understand the logic of your argument.⁶ And, in legal writing, logic persuades judges most.⁷

Second, writing style affects your reader's emotions. Well-written prose makes your readers happy, but a poorly written document forces your reader to struggle through the document.⁸

For lawyers, "well-written prose" means a writing style that captures the judge's attention and helps the judge to get your point.⁹ Specifically, you will please judges by writing clearly¹⁰ and by organizing your material.¹¹

Third, writing well and eliminating "trivial" errors boosts your credibility.¹² Credibility involves intelligence.¹³ The "intelligence" traits that relate to writing style include paying attention to detail, organizing your argument, articulating your argument, and empathizing with your reader.¹⁴ 

C. Practical tips

Judges and lawyers have suggested some specific, practical tips for writing persuasively. Some of these tips are collected below, framed around Smith's persuasion strategies and the 3 classical persuasion processes:

Tip 1. Write politely. Scorn, insult, sarcasm, and offensive language:

• "are not the stuff of which real persuasion is made. The argument is not convincing because the reader soon recognizes its artificiality."¹⁵

Uncivil language lacks candor; it comprises "a form of bad manners".¹⁶

Tip 2. To evince credibility, avoid grammatical and punctuation errors. As American Judge Patricia Wald has said:

• "You cannot imagine how disquieting it is to find several spelling or grammatical errors in an otherwise competent brief. It makes the judge go back to square one in evaluating the counsel."¹⁷

Tip 3. To evince credibility and good character, avoid words like "clearly" and "obviously". Australian High Court Justice Kenneth Hayne has explained:

• "The statement of an issue is not made more persuasive by simply sprinkling it with intensifying epithets like 'clearly', 'flagrantly' or 'obviously' or ... conclusory legal statements like 'in clear breach of its contractual obligations'."¹⁸

Words like "clearly" and "obviously" signal weakness rather than strength.¹⁹ They also lack candor and fairness.²⁰ And if you have to emphasize the obviousness of something, you insult the judge's intelligence.²¹ Even more important, if you mistakenly call a complex idea, or an ambiguous rule, or a nuanced judgment, "clear" and "obvious", you lose credibility.²²

Tip 4. Understate rather than overstate. You need more skill and intelligence to understate than overstate. In the "Art of Brief Writing", F Trowbridge Von Baur said:

• "It is relatively easy to overstate a point with generalities and adjectives. However, to understate an argument, specific and close reasoning are required. An argument that can be understated will tend to be sound … An understated argument has a unique if intangible power of persuasion."²³

For example, do not change "three" to "many"; "dog" to "ferocious beast"; or "corporate officers" to "self-seeking moguls".²⁴ Similarly, consider deleting words like "very". It seems paradoxical, but deleting intensifiers like "very" strengthens your writing.²⁵

Tip 5. Think carefully about using hedge words like "probably" and "possibly". Most commentators suggest hedge words weaken your writing.²⁶ On the other hand, hedge words may sometimes help your credibility, depending on your audience.

For example, some psychological research suggests that qualified statements persuade people who know your area of expertise (such as judges) more than unqualified statements persuade these people; but the reverse applies for people who do not know your area of expertise (such as lay jurors).²⁷

Tip 6. To achieve clarity and what Smith calls positive "medium mood", use short words, short sentences, and short paragraphs.²⁸ The less involved the language, "the easier it is to read and to follow a thought".²⁹ Moreover, it requires more skill, thought, and intelligence to condense an idea than to write a lengthy discourse.³⁰

Tip 7. To make your writing easy to read, avoid:

• unnecessary legalese and other jargon³¹
• clichés³²
• throat-clearing phrases (for example, "It is significant that", "It is important to note that")³³
  
• other needless words³⁴

D. Software can help you implement these tips automatically

Software such as StyleWriter can help you use a persuasive writing style, quickly and easily. Rather than memorizing the tips outlined above, use StyleWriter to automatically scan for many of the tips. The software scans for jargon, clichés, and needless words, among other writing flaws (see StyleWriter's Plain English Checklist). The software then suggests replacing these writing flaws with plain English alternatives.

For example, when using StyleWriter on this article, the software suggested cutting the unneeded intensifier "very", the wordy phrase "important to note", and overlong sentences.

Conclusion

Don't underestimate writing style as mere cosmetics. Good writing style helps you persuade judges by boosting your credibility and by helping the judge get your message. "Good writing style" means short, simple, understated prose. Software such as StyleWriter provides a quick and easy way of improving your writing style. And if you can improve your writing style, you can increase your powers of written persuasion.

Footnotes

¹ Justice Michael Kirby, "Appellate Advocacy—New Challenges", the Dame Ann Ebsworth memorial lecture, London, Tuesday, 21 February 2006, 15.

² Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) ("Influencing the Judicial Mind") xvi.

³ The Hon Mr Justice Lightman, "Advocacy—A Dying Art?", address to the Chancery Bar Association Conference, 26 January 2004, quoted in Andrew Goodman, Influencing the Judicial Mind xvi.

⁴ Andrew Goodman, Influencing the Judicial Mind xviii.

⁵ Andrew Goodman, Influencing the Judicial Mind xviii.

⁶ Michael R Smith, Advanced Legal Writing 98.

⁷ Michael R Smith, Advanced Legal Writing 3.

⁸ Michael R Smith, Advanced Legal Writing 98.

⁹ Michael R Smith, Advanced Legal Writing 97–8.

¹⁰ From a survey of 42 Delaware judges, Bryan Garner lists the judges' "likes and dislikes". Almost every quality the judges like (clarity, clear issues, brevity, etc) speeds up the delivery of information; almost every quality the judges dislike (verbosity, obscurity, clutter, etc) slows the delivery: Bryan Garner, Legal Writing in Plain English (2001) 144–5. Andrew Goodman has interviewed UK judges on what judges want from written advocacy. Andrew Goodman lists the results in Influencing the Judicial Mind 17–25. For an Australian perspective, see Kathryn O’Brien, "Judicial Attitudes to Plain Language and the Law", Interview of Justice Michael Kirby, High Court of Australia, Wednesday, 1 November 2006.

¹¹ Michael R Smith, Advanced Legal Writing 98. People who make organized arguments appear more credible than people who make disorganized arguments. Also, audiences react more favorably to arguments organized in familiar ways than to arguments organized in unfamiliar ways. See Paul T Wangerin, "A Multidisciplinary Analysis of the Structure of Persuasive Arguments" (1993) 16 Harvard Journal of Law and Public Policy 195, 201. On ways to organize a legal argument, see, for example, Bryan Garner, The Elements of Legal Style (2 ed, 2002) 58–62.

¹² Michael R Smith, Advanced Legal Writing 169.

¹³ Michael R Smith, Advanced Legal Writing 103.

¹⁴ Michael R Smith, Advanced Legal Writing 128. See also Robert J Condlin, "'Cases on Both Sides'—Patterns of Argument in Legal Dispute Negotiation" (1985) 44 Maryland Law Review 65, 84–5.

¹⁵ F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89.

¹⁶ F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89.

¹⁷ Patricia M Wald, "19 Tips from 19 Years on the Appellate Bench" (1999) 1 Journal of Appellate Practice and Process 7, 22. See also Lucille R Kaplan, "Writing that Persuades: No Quick Fix for the Advocate" (1984) 20 Trial 44, 47; Frederick Bernays Weiner, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 64.

¹⁸ Justice KM Hayne, "Written Advocacy", paper delivered as part of the Continuing Legal Education Program of the Victorian Bar, 5 and 26 March 2007.

¹⁹ Bryan Garner, The Elements of Legal Style (2 ed, 2002) 35; Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 363–4; Jonathan K Van Patten, "Twenty-Five Propositions On Writing and Persuasion" (2004) 49 South Dakota Law Review 250, 269; Andrew H Baida, "Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy" (2002) 22 Australian Bar Review 149, 160, 178.

²⁰ Andrew H Baida, "Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy" (2002) 22 Australian Bar Review 149, 160, 178.

²¹ Jonathan K Van Patten, "Twenty-Five Propositions On Writing and Persuasion" (2004) 49 South Dakota Law Review 250, 269. See also Andrew H Baida, "Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy" (2002) 22 Australian Bar Review 149, 178.

²² Jonathan K Van Patten, "Twenty-Five Propositions On Writing and Persuasion" (2004) 49 South Dakota Law Review 250, 269.

²³ F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89. See also John A Wilson, "Common Sense in Advocacy: Some General Observations on Trial of a Suit" in George Rossman (ed), Advocacy and the King’s English (1960) 59, 64 ("Understatement is, in itself, a powerful factor in the psychology of persuasion").

²⁴ Bryan Garner, The Elements of Legal Style (2 ed, 2002) 197–8. See further Steven Stark, Writing to Win (1999) 123–6.

²⁵ See, for example, Charles R Calleros, Legal Method and Writing (5 ed, 2006) 345; Raymond T Elligett, Jr and Hon John M Scheb, "Stating the Case and Facts: Foundation of the Appellate Brief" (2003) 32 Stetson Law Review 415, 423.

²⁶ See, for example, Tom Goldstein and Jethro K Lieberman, The Lawyer’s Guide to Writing Well (2 ed, 2002) 116; Michelle Pan, "Strategy or Stratagem: The Use of Improper Psychological Tactics by Trial Attorneys to Persuade Jurors" (2005) 74 University Of Cincinnati Law Review 259, 261, 266 (referring to jurors' perceptions of powerful speech).

²⁷ See John C Reinard, "The Role of Toulmin's Categories of Message Development in Persuasive Communication: Two Experimental Studies on Attitude Change" (1984) 20 Journal of The American Forensic Association 206; Paul T Wangerin, "A Multidisciplinary Analysis of the Structure of Persuasive Arguments" (1993) 16 Harvard Journal of Law and Public Policy 195, 207.

²⁸ See, for example, F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89 (clarity can "usually be best provided with the ammunition of short sentences and five-cent words").

²⁹ F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89.

³⁰ Jason L Honigman, "The Art of Appellate Advocacy" (1966) 64(6) Michigan Law Review 1055.

³¹ Raymond T Elligett, Jr and Hon John M Scheb, "Stating the Case and Facts: Foundation of the Appellate Brief" (2003) 32 Stetson Law Review 415, 423; Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 175–8; Frederick Bernays Weiner, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 64. For legalisms and their plain English alternatives, see Bryan Garner, Legal Writing in Plain English (2001) 34–5; Bryan Garner, The Elements of Legal Style (2 ed, 2002) 191–2; 194–5; Bryan Garner, The Redbook: A Manual on Legal Style (2002) 161–2; Deborah E Bouchoux, Aspen Handbook for Legal Writers (2005) 95; Terri LeClercq, Guide to Legal Writing Style (3 ed, 2004) 48–50. See also Joseph Kimble, Lifting the Fog of Legalese (2006) 173–4; Richard C Wydick, Plain English for Lawyers (4 ed, 2002) 61–3; Terri LeClercq, Expert Legal Writing (1995, 2002 reprint) 119–23.

³² For a useful list of clichés to avoid, see Bryan Garner, The Elements of Legal Style (2 ed, 2002) 204–5; Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2 ed, 2004) 228–34.

³³ Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2 ed, 2004) 210–11. For a list of throat-clearing phrases to avoid, see Bryan Garner, The Elements of Legal Style (2 ed, 2002) 53–4; Eugene Volokh, Academic Legal Writing (2003) 168–9; Deborah E Bouchoux, Aspen Handbook for Legal Writers (2005) 104–5; Laurel Currie Oates and Anne Enquist, The Legal Writing Handbook (2006) 661–2; Richard Neumann, Legal Reasoning and Legal Writing (2005) 242.

³⁴ Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2 ed, 2004) 212–15.

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