Even though legal writing constitutes persuasive writing, litigators are rarely advised to learn from stylists of persuasive writing outside of judges and others litigators. This is surely a missed opportunity. Many forms of writing outside of the law, in particular, creative nonfiction for purposes of today's post, offer truly insightful suggestions on how to more persuasively make fact-based arguments.
In "You Can't Make This Stuff Up," a guide to writing creative nonfiction, author Lee Gutkind describes the requirements for successful nonfiction in a manner recognizable to any successful litigator—an ability to "translate and communicate complicated ideas with compact specificity, even as they are being informative and dramatic." Similarly, the remainder of the book offers up a number of essential rules for writers of creative nonfiction that are also adaptable to litigators who want to also successfully make engaging and persuasive arguments in their legal writing and briefs, some of which are highlighted and explained below.
1. Use of narrative. "People remember facts longer and more completely when they are part of a story. . . the jumping-off points for you to present relevant and important ideas and information related to these scenes or little stories."
Litigators often forget that judges are human beings just like themselves, and not simply legal computers that process data and facts only. Judges appreciate a good story as much as the next person. The statement of facts section of a legal brief is as important as the legal argument and should not be overlooked. This section of the brief should be used to craft a coherent, relatable narrative that others would find persuasive and understandable. Such a coherent, relatable narrative provides a roadmap for how the Court should interpret each fact presented, and makes a Court more comfortable finding for you on the merits when it see that the facts support your version of the relevant events.
2. Showing and not telling. "When you're writing description, you don't want to lean on adjectives. The key to effective and evocative description is choosing intimate and specific details."
Litigators often don't trust the comprehension abilities of their target audience. As a result, they often aim to bludgeon the reader with the importance of each factual detail while often not giving insightful details. (e.g. "My client is too short to have reached the cookie jar. This case is a miscarriage of justice.") Litigators can express the same sentiment more effectively with more specificity of detail and a lighter touch. (e.g. "My client is twelve years old and four feet tall. The cookie jar was in a cabinet ten feet up from the ground, inaccessible to anyone without a ladder. There was no ladder in the house.") The extra factual details show that you have a better grasp of your facts, make your argument more memorable, and also allows the reader to feel as if they came to a conclusion on the facts on their own.
3. Get to the point early. "[W]hen writing a scene, think about thrusting your reader into the heat of the action as quickly as possible. . . The faster you get readers involved in the story of your essay, the longer they'll stay with you."
Different legal writing instructors offer different advice on how to begin writing the body of a brief or point heading. However, it can never hurt to tell the Court what you want it to do or what you intend to prove in a given section within your first sentence or two before beginning a lengthy recitation of the pertinent statutes or laws. A recitation of the law with no stated connection to what you seek for the Court to "see" within that recitation, has a tendency to make the reader disengage or speed through the section so as to reach the actual "point" of your argument in a later paragraph or page. Obviously, this is not a beneficial state of affairs.
4. Edit, edit, edit. "The power of the memoir is in its concentration, the narrowness of its scope, and the intensity and clarity of its revelations."
Editing is your friend. Clarity of thought and editing go hand-in-hand. There is rarely a piece of legal writing that would not be aided by being one word (or hundreds of words) shorter. Clearer writing makes for clearer, easier-to-grasp legal arguments, which will make it easier for a Court to rule in your favor. Brief accordingly.
Keywords: minority trial lawyer, litigation, legal writing, tips, brief writing, nonfiction