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.

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.

Wisconsin Lawyer