Legal Writing Principle 2: Weave in Themes

Sep 2 / Joe Regalia
The latest research leaves no doubt: Emotions play a profound role in all decision making—including the most “logical” decisions that lawyers and judges make. Favorable emotions absolutely impact how our readers will view and process our legal writing. Brain scans reveal that when we think through tough issues, the emotional and feeling centers of our brain are triggered long before we even start accessing our rational and conscious processing centers. So emotions are setting us up for our decisions before we even realize it. But as important as emotions are in persuasion, there is nothing judges or lawyers hate more than legal writing that overtly plays on their emotions. Obvious ploys raise a reader’s hackles.

Research shows that legal writers can better leverage the power of emotions in three ways:
  • Using emotion-triggering language
  • Weaving together disparate points with a cohesive theme
  • Grounding key arguments in some subtle policy reminders
Emotional language means specific nouns, sensory verbs, and other language that will make your reader see and feel. Look at what a difference it makes changing just a few words in these sentences:
The next day, three individuals passed away during a shooting incident, and the defendant was arrested for it.
The next day, the defendant was arrested for opening fire at the mall and murdering three bystanders.
I like thinking of themes as simple messages that convey the emotional and commonsense perspective you want your reader to apply to your entire document. Once you figure out your theme or themes—which should each be a sentence or two and no more—you can deftly insert reminders throughout your document. Your theme should also shape in what order you dole out information and what points you emphasize. Some examples of themes are:
  • When bad things happen the most culpable person needs to pay—and that is the defendant.
  • The opposing party dodges key arguments because it has no response to them—and those arguments win.
  • The opposing party cherry-picks facts that ignore context and the real story.
  • The defendant treated violating the law as a “cost of doing business.”
  • The defendant company did its best, but an entirely unforeseen event caused someone harm.
And subtly dropping in policy reminders about how your readers’ decisions will cause real consequences is always powerful:
The Ninth Circuit has already told us the right approach here: dismiss this case and allow the plaintiff to file a new one. And the rule makes sense. Defendants in these sorts of cases are usually small mom and pop companies without any sort of insurer paying for their defense. Requiring them to pay for litigation that will likely be mooted—which will likely put them and their employees out on the street—is not the sensible course.

Other tools to unlock the power of themes

  • Highlight emotionally-laden facts for your readers. On the macro level, put your hard-hitting facts in obvious places. On the micro level, put those heartstring facts at the beginning or end of your paragraphs and at the start or ending of sentences—where they will be noticed and punch hardest.
  • Use nouns and verbs that evoke the senses, especially visually.
  • Let choice, emotional facts do the lifting in your writing—not adverbs and adjectives. So: “Susie snapped two of the plaintiff’s bones in the fight,” not “Susie severely and permanently injured plaintiff.”
  • Trigger your reader’s emotions by placing them in someone else’s shoes: “Plaintiff had just lost her job and had no way to pay for her 5-year-old daughter’s surgery, so she asked for a loan.”
  • Brainstorm at least three or four different possible themes for your case or document and make sure you are picking the most powerful one.
  • Encourage your reader to imagine the practical, concrete outcomes of a decision.
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Remember to capture your reader’s heart with themes that tap into their values.

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