Persuading Judges in Writing: Tips for Lawyers (And how technology can help)

Introduction

In this short article,1 I explain how a good writing style can help lawyers to persuade judges.2 I then provide some practical tips.

I have compiled these tips after reading Michael Smith's excellent book, Advanced Legal Writing.3

The main persuasion processes Smith describes come from classical rhetorical theory.

In classical rhetorical theory, the three processes of persuasion comprise logic, emotion, and credibility.4

Your writing style can affect all these persuasion processes. And specialist editing software such as StyleWriter5 can help you to use a persuasive writing style, quickly and easily.

A. Written persuasion provides the best opportunity to persuade a judge

American lawyers have used trial briefs and appellate briefs for a century or more.6 And even courts with strong oral traditions have shifted to written advocacy.

The Australian High Court provides an example.7 According to Justice Michael Kirby, in shifting to written argument:

"Australian courts have changed, probably forever, the precise skills of advocacy that they enlist".8

England, too, has "now moved so far in the direction of core arguments always being in written form"9 that Justice Lightman has said:

"[A]dvocacy … today … transcends its traditional form of oral presentation in court and includes and finds critical expression in written forms in which expertise is called for of the advocate and which can have a decisive effect on the outcome of a case … Counsel now requires expertise at least as much in preparing [written skeleton arguments] as in making oral submissions."10

According to Andrew Goodman, written advocacy in England (and Australia and America) now provides "an essential tool" that "enables you to damage your opponent without even opening your mouth".11 Written persuasion offers a "unique opportunity, not to be wasted".12

B. Your writing style can affect all three classical persuasion processes

Your writing style can affect all three classical persuasion processes.

First, if you do not write clearly, then your audience will not understand the logic of your argument.13 And, in legal writing, logic persuades judges most.14

Second, writing style affects your reader's emotions. Well-written prose makes readers happy, but a poorly written document forces the reader to struggle through the document.15

For lawyers, "well-written prose" means a writing style that captures the judge's attention and helps the judge to get the lawyer's point.16 Specifically, lawyers please judges by writing clearly17 and by organising their material.18

Third, writing well and eliminating "trivial" errors boosts your credibility.19

Smith says credibility involves: "good moral character", "goodwill", and "intelligence".20

"Good moral character" includes zeal, respect, candour, truthfulness, and professionalism.21

Whereas good character refers to one's general moral makeup, "goodwill" refers to one's disposition to a specific audience22 (for example, a judge or opponent).

The "intelligence" traits that relate to writing style include paying attention to detail, organising an argument, articulating an argument, and empathising with the reader.23

C. Advocacy experts suggest some specific tips

Judges and lawyers have suggested some specific, practical tips for writing persuasively. I have collected some of these tips below, framing them around Smith's persuasion strategies and the three classical persuasion processes.

Rather than memorising these tips, try using specialist editing software that automatically scans for many of the tips.

UK company EditorSoftware provides the best specialist editing software I have found, called StyleWriter.24

When I used EditorSoftware's StyleWriter on this article, it suggested cutting the unneeded intensifier "very", the wordy phrase "important to note", and overlong sentences. I explain these writing flaws in the following tips.

Tip 1. To show what Smith calls goodwill and good moral character, write politely. Scorn, insult, sarcasm, and offensive language:

"are not the stuff of which real persuasion is made. The argument is not convincing because the reader soon recognizes its artificiality".25

Uncivil language lacks candour; it comprises "a form of bad manners".26

Tip 2. To evince credibility, avoid grammatical and punctuation errors. As American Judge Patricia Wald has said:

"You cannot imagine how disquieting it is to find several spelling or grammatical errors in an otherwise competent brief. It makes the judge go back to square one in evaluating the counsel."27

Tip 3. To evince credibility and good character, avoid words like "clearly" and "obviously". Australian High Court Justice Kenneth Hayne has explained:

"The statement of an issue is not made more persuasive by simply sprinkling it with intensifying epithets like 'clearly', 'flagrantly' or 'obviously' or … conclusory legal statements like 'in clear breach of its contractual obligations'."28

Words like "clearly" and "obviously" signal weakness rather than strength.29 They also lack candour and fairness.30 And if you have to emphasise the obviousness of something, then you insult the judge's intelligence.31 Even more important, if you mistakenly call a complex idea, or an ambiguous rule, or a nuanced judgment, "clear" and "obvious", then you lose credibility.32

Tip 4. Understate rather than overstate. You need more skill and intelligence to understate than overstate. In the "Art of Brief Writing", former lawyer and author, the late F Trowbridge Von Baur, said:

"[I]t is relatively easy to overstate a point with generalities and adjectives. However, to understate an argument, specific and close reasoning are required. An argument that can be understated will tend to be sound … An understated argument has a unique if intangible power of persuasion."33

For example, do not change "three" to "many"; "dog" to "ferocious beast"; or "corporate officers" to "self-seeking moguls".34 Similarly, consider deleting words like "very". It seems paradoxical, but deleting intensifiers like "very" strengthens your writing.35

Tip 5. Think carefully about using hedge words like "probably" and "possibly". Most commentators suggest hedge words weaken your writing.36 On the other hand, hedge words may sometimes help your credibility, depending on your audience. For example, some psychological research suggests that qualified statements persuade people who know your area of expertise (such as judges) more than unqualified statements persuade these people; but the reverse applies for people who do not know your area of expertise (such as lay jurors).36a

Tip 6. To achieve clarity and what Smith calls positive "medium mood", use short words, short sentences, and short paragraphs.37 The less involved the language, "the easier it is to read and to follow a thought".38 Moreover, it requires more skill, thought, and intelligence to condense an idea than to write a lengthy discourse.39

Tip 7. To make your writing easy to read, avoid:

  • unnecessary legalese and other jargon;40
  • clichés;41
  • throat-clearing phrases (for example, "It is significant that", "It is important to note that");42 and
  • other needless words.43

Here, StyleWriter helps a lot. The software scans for jargon, clichés, and needless words, among other flaws (see StyleWriter's Plain English Checklist). The software then suggests replacing these flaws with plain English alternatives.

Conclusion

Do not underestimate writing style as mere "cosmetics".44 Good writing style helps you to persuade judges by boosting your credibility and by helping the judge to get your message. "Good writing style" means short, simple, understated prose. Software such as StyleWriter provides a quick and easy way of improving your writing style. And if you can improve your writing style, then you can increase your powers of written persuasion.

* LLB(Hons)(ANU), Project Manager, Research One Pty Ltd. Research One provides research for lawyers in Australia and internationally. The company also operates sister websites called Write Better English and Win More Cases. Thanks to Sarah Green, Trischa Baker, Esther Oswald, and Daniel Pascoe for their comments on earlier drafts.

[1] For this article, I have cited only a small sample of the vast literature on legal writing and persuasion.

[2] Much of the article applies more broadly. For example, techniques for writing persuasive trial briefs and appellate briefs can apply to demand letters, letters to opposing counsel, and other legal writing.

[3] Michael R Smith, Advanced Legal Writing-Theories and Strategies in Persuasive Writing (2002) ("Advanced Legal Writing").

[4] Or "logos, pathos, and ethos". See generally Advanced Legal Writing (2 ed, 2003) 243-251 (judges list their "recommended tools of persuasion").

[5] Research One has researched several software titles and is happy to recommend StyleWriter as the best of these. After researching the available software, Research One became one of StyleWriter's affiliates.

[6] See generally R. Kirkland Cozine, "The Emergence of Written Appellate Briefs in the Nineteenth-Century United States" (1994) 38(4) The American Journal of Legal History 482.

[7] Justice KM Hayne, "High Court Rules 2004", introductory remarks at seminars for the legal profession, October-November 2004.

[8] Justice Michael Kirby, "Appellate Advocacy-New Challenges", the Dame Ann Ebsworth memorial lecture, London, Tuesday, 21 February 2006, 15.

[9] Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) ("Influencing the Judicial Mind") xvi.

[10] The Hon Mr Justice Lightman, "Advocacy-A Dying Art?", address to the Chancery Bar Association Conference, 26 January 2004, quoted in Andrew Goodman, Influencing the Judicial Mind xvi.

[11] Andrew Goodman, Influencing the Judicial Mind xviii.

[12] Andrew Goodman, Influencing the Judicial Mind xviii.

[13] Michael R Smith, Advanced Legal Writing 98.

[14] Michael R Smith, Advanced Legal Writing 3.

[15] Michael R Smith, Advanced Legal Writing 98.

[16] Michael R Smith, Advanced Legal Writing 97-98.

[17] From a survey of 42 Delaware judges, Bryan Garner lists the judges' "likes and dislikes". Almost every quality the judges like (clarity, clear issues, brevity, etc) speeds up the delivery of information; almost every quality the judges dislike (verbosity, obscurity, clutter, etc) slows the delivery: Bryan Garner, Legal Writing in Plain English17-25. For an Australian perspective, see Kathryn O'Brien, "Judicial Attitudes to Plain Language and the Law", Interview of Justice Michael Kirby, High Court of Australia, Wednesday, 1 November 2006.

[18] Michael R Smith, Advanced Legal Writing 98. People who make organised arguments appear more credible than people who make disorganised arguments. Also, audiences react more favourably to arguments organised in familiar ways than to arguments organised in unfamiliar ways. See Paul T Wangerin, "A Multidisciplinary Analysis of the Structure of Persuasive Arguments" (1993) 16 Harvard Journal of Law and Public Policy 195, 201. On ways to organise a legal argument, see, for example, Bryan Garner, The Elements of Legal Style (2 ed, 2002) 58-62.

[19] Michael R Smith, Advanced Legal Writing 169.

[20] Michael R Smith, Advanced Legal Writing 103.

[21] Michael R Smith, Advanced Legal Writing 104.

[22] Michael R Smith, Advanced Legal Writing 123.

[23] Michael R Smith, Advanced Legal Writing 128. See also Robert J Condlin, "'Cases on Both Sides'-Patterns of Argument in Legal Dispute Negotiation" (1985) 44 Maryland Law Review 65, 84-5.

[24] See www.editorsoftware.com/affiliat es/CBW/.

[25] F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89.

[26] F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89.

[27] Patricia M Wald, "19 Tips from 19 Years on the Appellate Bench" (1999) 1 Journal of Appellate Practice and Process 7, 22. See also Lucille R Kaplan, "Writing that Persuades: No Quick Fix for the Advocate" (1984) 20 Trial 44, 47; Frederick Bernays Weiner, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 64.

[28] Justice KM Hayne, "Written Advocacy", paper delivered as part of the Continuing Legal Education Program of the Victorian Bar, 5 and 26 March 2007.

[29] Bryan Garner, The Elements of Legal Style (2nd ed, 2004) 363-364; Jonathan K Van Patten, "Twenty-Five Propositions On Writing and Persuasion" (2004) 49 South Dakota Law Review 250, 269; Andrew H Baida, "Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy" (2002) 22 Australian Bar Review 149, 160, 178 ("Fair advocacy often gives way to inappropriate (and weak) argument … when buzzwords like 'obviously' and 'clearly' creep into a statement of facts. These adverbs are telltale signals of weak or non-existent record support").

[30] Andrew H Baida, "Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy" (2002) 22 Australian Bar Review 149, 160, 178.

[31] Jonathan K Van Patten, "Twenty-Five Propositions On Writing and Persuasion" (2004) 49 South Dakota Law Review 250, 269. See also Andrew H Baida, "Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy" (2002) 22 Australian Bar Review 149, 178.

[32] Jonathan K Van Patten, "Twenty-Five Propositions On Writing and Persuasion" (2004) 49 South Dakota Law Review 250, 269.

[33] F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89. See also John A Wilson, "Common Sense in Advocacy: Some General Observations on Trial of a Suit" in George Rossman (ed), Advocacy and the King's English (1960) 59, 64 ("Understatement is, in itself, a powerful factor in the psychology of persuasion").

[34] Bryan Garner, The Elements of Legal Style (1999) 123-126.

[35] See, for example, Charles R Calleros, Legal Method and Writing (5 ed, 2006) 345 (noting the irony that modifiers designed to reinforce a proposition sometimes sap the strength from an otherwise powerful statement); Raymond T Elligett, Jr and Hon John M Scheb, "Stating the Case and Facts: Foundation of the Appellate Brief" (2003) 32 Stetson Law Review 415, 423.

[36] See, for example, Tom Goldstein and Jethro K Lieberman, The Lawyer's Guide to Writing Well (2 ed, 2002) 116; Michelle Pan, "Strategy or Stratagem: The Use of Improper Psychological Tactics by Trial Attorneys to Persuade Jurors" (2005) 74 University Of Cincinnati Law Review 259, 261, 266 (referring to jurors' perceptions of powerful speech).

[36a] See John C Reinard, "The Role of Toulmin's Categories of Message Development in Persuasive Communication: Two Experimental Studies on Attitude Change" (1984) 20 Journal of The American Forensic Association 206; Paul T Wangerin, "A Multidisciplinary Analysis of the Structure of Persuasive Arguments" (1993) 16 Harvard Journal of Law and Public Policy 195, 207.

[37] See, for example, F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89 (clarity can "usually be best provided with the ammunition of short sentences and five-cent words").

[38] F Trowbridge Vom Baur, "The Art of Brief Writing" (1976) 22 The Practical Lawyer 81, 89.

[39] Jason L Honigman, "The Art of Appellate Advocacy" (1966) 64(6) Michigan Law Review 1055.

[40] Raymond T Elligett, Jr and Hon John M Scheb, "Stating the Case and Facts: Foundation of the Appellate Brief" (2003) 32 Stetson Law Review 415, 423; Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (1995, 2002 reprint) 119-123.

[41] For a useful list of clichés to avoid, see Bryan Garner, The Elements of Legal Style (2 ed, 2004) 228-234.

[42] Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2005) 242.

[43] Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2 ed, 2004) 212-215.

[44] See similarly, Barbara Cotton, "Advanced Legal Research and Writing: How to Build a Cadillac" (1991) 13 Advocates' Quarterly 232, 244 ("Too many … lawyers drop the ball at this point … and hand in a … product without sufficient attention to 'cosmetics'").

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