We legal writers have the toughest persuading job around. And that's because many of our readers have it out for us. They hope we won’t persuade them. Maybe another attorney has already done a good job convincing our reader that we’re in the wrong. Or maybe the points we're pressing just happen to butt up against our reader’s beliefs or biases. Whatever it is, our readers often start out as our worst enemies.
So what to do? One idea is to treat your readers like you’d treat anyone else in your life. Be nice to them. Be likeable. Do everything you can to get back on their good side. What I'm pretty sure will not work is coming off like a jerk. But that's exactly how many lawyers sound in their writing. They whine; they tattle; they use words meant to make them sound smarter than the person reading. They force their points so fiercely that they sound smug.
In real life, we all know that no one likes people who talk this way. But in our briefs, it suddenly seems okay. And it’s not just intuition: Good research shows that an unlikeable tone hurts you in the persuasion department.
We all stumble with tone sometimes. So here are some ideas to strike a better one.
Step 1: Cut down on subjective adverbs and adjectives—let objective-sounding nouns and verbs do the lifting.
The easiest way to avoid an annoying tone? Cut down on lazy descriptors. Often we insert adverbs and adjectives into our sentences to try and manhandle our reader into feeling a certain way about something. Judges have heard about so much “blatant disregard” for the law, and even more arguments that “miss the mark.” When you really think about it, can you imagine that stuff doing anything but make you sound annoying?
So leave the adjectives and adverbs at home; let your nouns and verbs do the subtle persuading.
A heinous and vicious attack that caused severe and permanent injuries to plaintiff.
The defendant used an aluminum baseball bat to beat plaintiff until his knee caved in.
You can feel the difference between these two sentences, right? In the first, the writer is beating you over the head with their righteousness; in the second, you can’t help but sympathize with their client.
Step 2: Ground your arguments in law—save emotions, policies, and values for the subtler spaces in your document
Carefully lace your arguments and major themes with emotion, but give everything an obvious and solid grounding in the law. If your points sound like they stem entirely from the non-law stuff, it may backfire on you.
So perhaps instead of a theme painting a plaintiff as a “bad actor,” you opt for one that suggests what plaintiff did is precisely what Congress meant to regulate in passing the relevant statute. And instead of calling your opponent’s argument a “desperate plea,” how about simplying pointing out the bad authority they relied on?
When you do weave in emotions and policies, try to keep them under the radar. Tuck these points right behind your rule-based arguments. Or put them in paragraphs with some of the more legal-sounding rhetoric.
Step 3: Try to remove yourself from the equation.
You should rarely have a reason to make a point based on your “belief” or “position.” Make your arguments about what the facts or authority say.
Our position is that this discovery is too burdensome to be permitted.
This discovery will burden defendant with an estimated $2 million in costs. That burden is not warranted under the Federal Rules for X and Y reasons.
Step 4: Avoid using words that make you sound defensive.
When you set up an argument too forcefully it can make you look defensive or controlling. And, funny enough, argumentative. Take this example from a federal brief.
Should this Court decide to reach that issue in the first instance it must conclude that the Agreement is unconscionable.
Many judges’ gut reaction will be: “Oh I will, will I? We will see about that!”
By forcefully telling a legal reader to “ignore” something, that something “doesn’t matter,” or that a position is “flat wrong”—you can actually trigger biases against you. Science backs this up.
One study showed that when people were told to “ignore” a fact, that fact ended up becoming prominent for the listeners and, ultimately, weighed more heavily in their minds.
Just make your points on the merits and slide out of the scene without forcing anything on your reader. They just need to respect you enough to start listening.
Step 5: But do use your opponent's words against them.
Misrepresenting an opposing view is a credibility killer. One way to avoid this (and to avoid sounding argumentative in general) is to simply use your adversary’s words against them.
This means quoting their words and breaking them down. Like this:
The government now contends that the evidence was “harmless beyond any shadow of doubt and under any standard of review.” This is the same evidence . . . that the government hailed at trial as “powerfully probative evidence” concerning the very “nub” of the case.
Step 6: Avoid using hedging words to describe your own points or good facts
Avoid using hedging words that undermine your position. You need to be confident—because that confidence is infectious. No, you should not misrepresent anything. And yes, exaggerating will kill your credibility.
But you must find a winning position (or positions) in your case. And then you must argue those points confidently. Otherwise, how can you expect a judge to go out on a limb and adopt your position? The perfect balance is to be confident while never crossing the line into arrogant.
So cut down words like these:
At best / at least
Practice these six steps, and you’ll be well on your way to making your writing more likeable, and, most importantly—more persuasive.
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