How to Create Context in Legal Writing

Legal writing ranges from explanation to advocacy, from opinion letters to briefs. Regardless of whether we write to explain or advocate, all of us want to write persuasively. But we can persuade only when our readers understand what we’ve said. Their understanding often turns not just on the content but also on the frameworks that we create. Those frameworks create context for all of the details.

How Do We Create These Frameworks?

To answer, we can draw on decades of data gathered by cognitive psychologists, who’ve spent their lifetimes studying how the human brain processes language. Those studies shed light on how context influences understanding. For example, John Bransford and Marcia Johnson tested readers’ speed and accuracy as they read a paragraph lacking any context:

The procedure is actually quite simple. First, you arrange things into different groups depending on their makeup. Of course, one pile may be sufficient depending on how much there is to do. If you have to go somewhere else due to a lack of facilities that is the next step, otherwise you are pretty well set. It is important not to overdo things. That is, it is better to do too few things at once than too many. In the short run, this may not seem important but complications can easily arise. A mistake can be expensive as well. At first, the whole procedure will seem complicated. Soon, however, it will become just another facet of life. It is difficult to foresee any end to the necessity for this task in the immediate future, but then one can never tell. After the procedure is completed one arranges the materials into different groups again. Then they can be put into their appropriate places. Eventually, they will be used once more and the whole cycle will then have to be repeated. However, that is part of life.

Without context, readers struggled to understand and remember the details in this excerpt.

Bransford and Johnson then gave the same paragraph to others, telling them that the topic was washing clothes. Aided with the topic, people read the details more quickly and accurately. Bransford and Johnson explained that the topic supplied context for all of the details.

What Can We Do to Create Context?

One thing that we can do is use topic sentences. Fewer than 20% of sentences contain topic sentences. But topic sentences can create context for the details, quickening the reader’s ability to complete a passage and remember it afterward.

To see how topic sentences affect recall, Professor Harriet Waters gave short passages to 48 college students. The passages contained not only summarizing statements but also sentences providing details. Every college student remembered the summarizing statements better than the sentences containing the details.

Raymond Guindon and Walter Kintsch conducted a similar study with similar results. Professor Guindon and Professor Kintsch gave individuals paragraphs containing summaries of the text along with sentences containing details. Readers recalled more words from the summarizing statements than from the sentences containing details.

The Waters and Guindon–Kintsch studies shed insight on how to create context, allowing readers to breeze through the passages more quickly and to remember the author’s point.  

Consider this topic sentence, as Chris Landau urged the Court of Appeals for the Federal Circuit to convene en banc to recognize a constitutional right for federal judges to obtain periodic raises to keep pace with inflation. Mr. Landau had a problem: The same court had just recently rejected the same proposition in Williams v. United States. So he confronted that challenge in his topic sentence:

The time has come for this Court, sitting en banc, to reconsider Williams. Indeed, it is hard to interpret the Supreme Court’s remand of this case as anything other than an invitation to do just that. Over the dissent of four Judges, this Court denied the plaintiffs’ motion for initial hearing en banc to reconsider Williams, and a panel summarily disposed of the appeal based on Williams. The Supreme Court, however, granted plaintiffs’ petition for certiorari, vacated the judgment, and remanded the case for this Court to consider a preclusion argument raised by the Government in opposition to the petition for certiorari. That course of action would be inexplicable if the Supreme Court were convinced that Williams, had correctly applied Will; the Court could simply have denied the petition. To the contrary, the remand order goes out of its way to note that “[f]urther proceedings after decision of the preclusion question are for the Court of Appeals to determine in the first instance.” Now that a panel of this Court has unanimously rejected the Government’s preclusion argument, the path is clear for the en banc Court to reconsider Williams.

Now read the same excerpt without the italicized sentence. Do you still understand the point of the procedural history as you’re reading it? Most readers won’t. Cognitive linguists would explain the italicized sentence as the macroproposition that allows us to understand the point of the procedural history as we’re reading it. In other words, we use the topic sentence to process and remember the details as we read them.

Value of Topic Sentences

So when you edit your prose, don’t overlook the value of topic sentences. Often overlooked, topic sentences provide an easy, effective device to create context—an invaluable tool for clarity.

If you are looking for more legal writing tips, check out Judge Robert E. Bacharach’s book Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word. As a law student, you are eligible for a 50% discount on the list price. You can also listen to Judge Bacharach share some of his writing tips on the ABA Journal’s Modern Law Library podcast.