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Vol. 71, No. 3, March
1998
In Plain English
When weaving emotional
arguments into legal logic
Remember to focus your fire, use writing techniques that add drama
and force, and have faith in the quality of your argument.
By Mary Barnard Ray
A year ago I wrote about the importance of laying out your logic carefully
and clearly. (Please see, "Logic
and the Legal Reader," 70 Wis. Law. 28 (Feb. 1997).) When writing
to legal readers, you do not want to violate that logic for any emotional
reason. However, you also do not want to neglect the human interest and
common sense of fairness. These elements breathe life into your documents,
for a dry logical argument is a sorry thing to have to read.
This column focuses on how to weave emotion into the logical fabric of
your argument. (How much emotion or how often is a topic for another column.)
To weave in emotional arguments, remember three things: focus, force, and
faith.
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| Mary Barnard Ray is a legal writing lecturer and director
of the Legal Writing Individualized Instruction Services at the U.W. Law
School. She has taught writing workshops and offered individual sessions
for law students; she also taught advanced writing and commenting and conferencing
techniques in the training course for the legal writing teaching assistants.
She has taught and spoken nationally at many seminars and conferences of
legal and college writing instructors. Her publications include two coauthored
legal writing books, Getting It Right and Getting It Written and
Beyond the Basics, published by West Publishing Co. |
Focus. Do not work in every emotionally favorable fact that you have,
like the cranky coworker who carps about every little problem. Instead,
focus on the few key facts that are both emotionally favorable and significant,
given the reasoning of your logical argument. Focus on including these facts
at the various points where they are appropriate, and spend your energy
wording them skillfully. Focus your fire.
Force.Persuasive legal writing is slightly more formal than ordinary
speech, which appropriately reflects the seriousness of the matter being
argued. For that reason, you can use more formal emphatic tools without
sounding pompous. Take advantage of this. Use repetition, parallel structure,
or interrupting phrases - techniques that add drama and emphasis.
Repetition. The defendant company failed to schedule routine maintenance
for the press, failed to have a technician check the press after operators
had complained, and failed to warn the plaintiff of the machine's malfunctions.
Parallel structure. In Samson, the landlord had been asked
by tenants to replace burnt-out light bulbs in a stairwell, but had refused
to do so. Similarly, Mr. Tyler had been asked to place higher wattage light
bulbs in the stairwell, but had refused to do so.
Interrupting phrases. Driving across a bridge over a flooding
stream, unlike passing in a no-passing zone, is not an act of "wanton
disregard" for safety.
Faith. Have a little faith in yourself, your reader, and your
argument. In legal persuasion, quality is more effective than quantity.
Thus after you have chosen the forceful writing techniques you want to use,
state them as effectively as you can and stop. Return to your tight, if
dry, logical argument. Do not keep every dramatic phrase that appeals to
you.
If you do feel an irresistible urge to throw in additional phrasing,
do so with gusto: Add the word "damnably" or "damnable"
with every addition, as in "He was damnably fearful for his life"
or "Her damnable screaming startled the damnably frail and damnably
vulnerable plaintiff." This enables you to find all these phrases easily
the next day, so you can get them out of your system and out of your brief.
 From the Mailbag
"Different from" or "different than"?
Q: My understanding of your December column is that,
after a paragraph discussing each pet peeve, you then, at the bullet point,
include an example of proper usage. However, in the example you use "different
than," notwithstanding your comment in the previous paragraph
that "different from" is the best choice.
Did I catch you? Or is that example supposed to be one of the few instances
where "different than" can be used? (In my opinion, one should
never use "different than.")
A: Yes. you
are exactly right about that example; it was reversed. My only consolation
is that I also saw the problem as soon as I saw the article in print.
In my opinion, you also are right about "different than." I
have yet to see a time when it would be the right choice, although one or
two books I read claim otherwise.
If you have a writing problem that you can't resolve,
send your question to Ms. Ray, c/o Wisconsin Lawyer, State Bar of
Wisconsin, P.O. Box 7158, Madison, WI 53707-7158. Or, email
your question. Your question and Ms. Ray's response will be published
in this column. Readers who object to their names being mentioned should
state so in their letters.
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