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Why Engaging Prose Matters in Persuasive Legal Writing

Typewriter with "what's your story" written on page
By Joseph Fawbush, Esq. on October 21, 2019 11:42 AM

People use terms like flow or effortless to describe writing that they regard as really superb. They're not saying effortless in terms of it didn't seem like the writer spent any work. It simply requires no effort to read it." - Bryan Garner

Lawyers write for a captive audience, a privilege that is easy to abuse. Instead of writing to engage the interest of the reader, lawyers often write for their own benefit. This misplaced focus can result in dense, convoluted, and overly opinionated prose.

Persuasive writing is clear, engaging, and logical. Below are three tips for writing efficiently and persuasively.

Write With the Audience In Mind

“One should aim not at being possible to understand, but at being impossible to misunderstand." - Quintilian

Writing for the reader means two things: tailoring your writing to fit the reader and becoming largely invisible in the writing itself. If the judge prefers a formal style, write formally. Just keep in mind the same rules about clarity and efficiency apply regardless of style preference. Formal writing does not mean excessively verbose. Judges, like all readers, prefer clear arguments made succinctly.

Secondly, remember that it does not matter what you think. It matters what your reader thinks. The legal authority you cite is important; your opinion of that legal authority is not. Guide your reader through the relevant authority and show why the natural conclusion is the one that benefits your client.

Finally Join the Plain Language Movement

A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. - William Strunk and E.B. White

Lawyers, judges, and laypeople alike have criticized legalese for decades. By now it is an old joke. There is no excuse in modern legal writing for using archaic boilerplate, middle English compound words like heretofore, and superfluous Latin phrases like inter alia and vel non.

While judges can also be guilty of peppering their opinions with unnecessary Latin, still avoid complex language when possible. It may sound sophomoric, but good writing is easily understood. Do the work for your reader by making your arguments easy to read and impossible to ignore.

Be Specific Where Appropriate

You're never going to kill storytelling because it's built into the human plan. We come with it." - Margaret Atwood

It is not just jurists who are wired to remember stories better than facts: judges and your readers are, too. Use this to your advantage. When beneficial, evoke an image in the reader's mind of your client's story. Emphasize details if the judge has a history of basing decisions on justice more than precedent. Color your writing with enough detail to leave a lasting impression while maintaining focus on the legal argument.

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