A Way With Words: Persuasive Legal Writing

April 22, 2020 Amit Patel, JD, MA

Throughout their careers, attorneys face the certainty of having to draft many documents, ranging from routine letters and motions to complex legal briefs. Effective writing skills are critical for everyone from fledgling associates to seasoned partners hoping to persuade judges to their version of the facts. This article provides tips for effective and persuasive writing based primarily upon principles of psychological persuasion.

Make a Favorable First (Written) Impression

Research supports that “first impressions matter”– they are powerful and enduring. People judge quickly, and cling to their judgments long after. Consider the “halo effect,” a cognitive bias where a person judged positively on one dimension is automatically ascribed with other positive attributes. For instance, a physically attractive individual is more likely to be perceived as intelligent, sociable, and humorous, even if untrue. These holistic judgments are also difficult to revise once formed.

With regard to legal writing, pleadings and briefs are among the first impressions you can make on a judge. Consider anecdotal evidence from Justice Antonin Scalia: “If [I] see someone who has written a sloppy brief, I’m inclined to think that person is a sloppy thinker. It is rare that a person thinks clearly, precisely, carefully, and does not write that way. Contrariwise, it’s rare that someone who is careful and precise in his thought is sloppy in his writing. So it hurts you … to have ungrammatical, sloppy briefs.” Thus, clean, precise, and well-constructed sentences and citations can correlate to sound legal arguments, but have the opposite effect with poorly constructed writing. On a larger scale, a positive first impression made via an initial pleading can parlay into elevated judgments of subsequent filings, and your case as a whole.

Wither Times New Roman

While content is king, it would be wise not to discount appearance of that content. A New York Times experiment revealed that Baskerville font has a slight advantage, because readers perceive it as more credible and persuasive. Cornell professor David Dunning: “Baskerville seems to be the king of fonts…it is clear in the data that Baskerville is different from the other fonts in terms of the response it is soliciting. Now, it may seem small but it is impressive.” Be sure to consult local court rules first so you don’t run afoul of any typeface guidelines.

Be Bold (and maybe colorful too)

In a New York Times bestselling book, psychologist Daniel Kahneman detailed a study revealing that text printed in bold is more believable than unbolded text. This held true even if the statements were false. Use this to your advantage by always bolding headings and key arguments. If you’re able to use color, utilize bright blue or red as they are more believable than other shades and colors. And, as with font selection, consult your local rules first.

Less is More

It’s reasonable to think that adding more arguments to support your position would increase persuasion, even if those arguments aren’t particularly strong because it’s more “fuel for the fire.” Chief Justice Roberts says: “I have yet to put down a brief and say, ‘I wish that had been longer. So while I enjoy it, there isn’t a judge alive who won’t say the same thing. Almost every brief I’ve read could be shorter.” Judge Breyer agrees: “Don’t try to put in everything….If I see something 50 pages,…I’m already going to groan. And I’m going to wonder: Did he really have to write that?...I would have preferred 30. And if I see 30, I think: Well, he thinks he’s really got the law on his side because he took up 30.”

Cognitive science echoes the sentiment. In one study, a store offered a set of fancy dinnerware and patrons valued it at $33. When the store added a few more good pieces along with a few broken ones, offering the shoppers more pieces overall, the valuation fell to $23. Another study revealed that adding a cheap gift to an expensive product resulted in the whole deal seeming less attractive. The lesson from cognitive science is to strongly consider forgoing weaker arguments, rather than binding weaker and stronger arguments together, lest you dilute the stronger ones.

Bookend Your Best Arguments

The concepts of psychological primacy and recency are well documented. In short, information presented earlier or later is more memorable than information in the middle. By opening with your most compelling point, you maximize primacy, while inviting the reader to engage in chaining, or advancing an argument forward by coaxing the reader’s acceptance of subsequent arguments. The reader accepts the first strong argument, and persuasion principles of consistency and the “foot-in-the-door” work to continue the acceptance of additional more controversial arguments. Conclude by briefly reiterating your arguments to take full advantage of the effects.

Keep It Simple

Clarity, simplicity, and parsimony of language are paramount for effective writing. Multiple studies in applied cognitive psychology indicate an extremely robust effect of needless complexity leading to negative evaluations. Researchers discovered that heightened complexity negatively affected processing fluency, and theorized that straightforward writing is effective due to ease of processing.

Simpler writing is easier to process, and processing fluency has been positively associated with elevated judgments across multiple dimensions, including truth, confidence, and liking. Fluency reduction, however, led readers to attribute lower intelligence to the author. Given this negative link between complexity and perceived intelligence, the takeaway is simple: to sound smart, be simple by cutting complex and antiquated legalease in favor of plainer words.

Use Active Voice, for the most part

Recent research reveals that the way we interpret a message changes depending on whether it’s framed in active or passive voice, even if the content is held constant. Active voice garners feelings of psychological closeness, and activates more concrete patterns of thought. Researchers state, “If you want your audience to get revved up, you may need the sense of immediacy and closeness that comes with the active voice.” So in most cases where you’re seeking to arouse sympathy for your client, this would be the preferred option.

On the other hand, passive voice can be the better choice because it creates a sense of perceived distance. That distance can cause individuals to doubt the content of the message. Thus, you can use passive voice to reframe the readers’ perception as something accidental or unfortunate, rather than purposefully done, thereby distancing a party from the alleged conduct. If you’re defending in a contract case for example, “the contract was allegedly breached” might be better than “the defendant allegedly breached the contract.” This can subconsciously cause the reader to doubt that the contract was breached at all. Even with identical content, varying from active or passive voice “influence[s] the reader beyond what is stated in the written word.” Of course, the use of passive voice is best utilized when the actions spoken of are indeed equivocal.

You can also utilize the contrast effect to heighten the overall effect. Think about walking into a heated building on a frigid day. Initially you may have wondered why the temperature was so warm, perhaps even hot, upon entering. But after a few moments of becoming accustomed to your new environment, the temperature seemed more appropriate. Similarly, by using active voice throughout your document, you can offset and call particular attention to an argument by strategically switching to passive voice.

Steal The Opposition’s Thunder

A common trial tactic is to raise weaknesses in your case before the other side gets a chance. Research indicates this reduces the number of counterarguments self-generated by the reader. These two-sided arguments can also be more effective than partisan arguments because the presenter can characterize the information in a more favorable light. It also increases the presenter’s credibility by making them seem more fair and objective for admitting to a weakness.

In the realm of legal advocacy, convincing others is essential. Using the tips presented here, you can borrow from cognitive science to gain a persuasive edge with your writing, and ultimately make your case more compelling.

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