The Importance of Message-to-Market Match
One of the foundational principles of effective copywriting is message-to-market match. This simply means tailoring your message’s content to match your audience’s interests and concerns. Message-to-market match is also a foundational legal-writing principle: “know your audience” is the first rule in Judge Mark Painter’s Legal Writing 201: 30 Suggestions to Improve Readability (or How to Write for Judges, not Like Judges), and the second rule in Making Your Case: The Art of Persuading Judges, by Bryan Garner and Justice Antonin Scalia.
This principle suggests that trial lawyers should couch an argument to a jury in language different—and generally more explicitly emotionally charged—than they would use when making the same argument in a bench trial. In the appellate realm, it means discussing the standard of review and (where appropriate) public policy—the former a subject of limited importance to trial court judges but critical importance to appellate judges, the latter one over which trial court judges hold little sway, but which frequently guides appellate (and particularly high court) judges.
Some Copywriting Techniques That Will Make Your Briefs More Persuasive
One of the most familiar and effective copywriting techniques is to tell a compelling story. Copywriters often do this by using case studies. In briefs, you tell your client’s story in the statement of facts.
In fiction, stories have three primary elements: character, conflict, and resolution. The story you tell in your brief will have characters and conflict: the court’s ruling provides the resolution. Your goal is to tell the story so that the resolution will be almost self-evident.
You can make your statement of facts compelling by carefully selecting the details to call to the reader’s attention, arranging the details in a maximally effective way, and using evocative language.
Carefully selecting the details doesn’t mean presenting only the facts that favor your client’s position. Just the opposite is true: you’ll lose credibility if you omit relevant facts from your brief, and the court will give little credence to your legal argument. Nevertheless, as appellate lawyers and judges know, even in a self-contained universe where all facts are established and equally available to both parties, the appellant’s statement of facts and the respondent’s are often quite different.
Arranging the details in a maximally effective way means giving the story of the case a narrative flow. The classic three-part structure of a story moves from order, to disorder/chaos, to reorder. In brief-writing, this structure corresponds to introducing the characters (particularly your client); describing the conflict and its effect on your client; and setting forth the resolution for which you are advocating.
Using evocative language doesn’t mean hitting the reader over the head with bombastic, overblown rhetoric. Sensational, inflammatory language tends to arouse skepticism and reduce your credibility. Instead, use vivid words (including powerful verbs) and “show, don’t tell”: set forth the facts, and let the reader come to an independent (but subtly guided) conclusion about their import.
The Foot-in-the-Door Strategy
In Influence: Science & Practice, social scientist Dr. Robert Cialdini identifies six principles of effective persuasion. One of these, the consistency principle, states that people have a strong desire to be consistent with their previous opinions, assertions, and actions. The foot-in-the-door strategy is one application of this principle.
Copywriters employing the foot-in-the-door strategy get the reader to take a small initial action (such as accepting a free sample or making a small purchase), then later seek a more significant action. Accepting a free sample can lead to making a small purchase; making a small purchase can lead to making a larger one.
Brief-writers using this strategy get the reader to agree with an easily accepted, uncontroversial initial premise before presenting arguments favoring a more controversial, later premise. A skillful brief-writer will set forth the current state of the law in a series of nearly indisputable premises before applying it, by analogy, to the facts at issue.
Some Elements of Marketing Copy and their Analogues in Legal Briefs
Just as copywriting techniques can be applied in brief writing, some structural elements commonly found in marketing copy also appear in legal briefs.
Social Proof: Testimonials and Citations
A fascinating similarity between copywriting and brief writing is that both rely on a principle of persuasion known as social proof. This principle means that people look to what others are doing to determine whether they should take the same action. Common-law legal systems, which are built on precedent, can be seen as one of the most culturally significant applications of the concept of social proof.
In copywriting, social proof is often provided by testimonials. Testimonials are most effective if they are provided by customers who are similar to the seller’s ideal customer; include specific information relevant to the problems the seller’s ideal customer faces and the solutions the seller provides; and accurately reflect the customer’s actual words.
In brief-writing, social proof is provided by citation to and analysis of case law. Just as the most effective testimonials come from customers who are similar to the seller’s ideal customer, the most persuasive legal argument is built around cases whose material facts are similar to those in your case. Just as multiple, vague testimonials are not as persuasive as one or two detailed ones, string citations are not as persuasive as citations to a few factually similar cases (followed by parentheticals, where appropriate). Just as the language of testimonials should be accurate and not taken out of context, your discussion of legal authority should also be scrupulously accurate.
Asking for the Sale: The Call to Action and the Conclusion
Another notable parallel between copywriting and brief-writing is that both effective marketing pieces and briefs end with a request that the reader take a particular action. In copywriting, this is called the “call to action”; in brief-writing, it’s called the conclusion.
In the conclusion, you must tell the court exactly what you want it to do. Do you want the appellate court to affirm, reverse, or modify the order appealed from? If you want the court to modify, exactly how should the order be modified? Although an effective brief will make the court want to rule in your client’s favor, the precise nature of the relief your client seeks might not always be crystal clear from all that has come before. Don’t make the court guess (or—if you’re cynical—trust the court to figure out) what you want it to do: be explicit, and as detailed as necessary.
Sell Your Argument to Your Readers
In Winning on Appeal, Judge Ruggiero Aldisert observes: “In substance . . ., to write effectively is to sell effectively. That is why I can comfortably think of judges and lawyers as salespeople, a function they do not always recognize and one that many would probably deny. In this sense, objections notwithstanding, lawyers and judges are salespeople. Being successful means selling your argument to your readers.” To effectively sell your argument to judges, ensure you have a strong message to market match; use copywriting techniques such as storytelling and the foot-in-the-door strategy; effectively employ social proof; and end with a clear call to action.