Writing to Persuade

MAY 7, 2013 BY SHELLEY RISEDENLEAVE A COMMENT

Great legal writing means not only writing logically and concisely, but also writing to persuade. A good trial brief makes perfect sense, but a great one, gets your audience to do what you want them to do. So how does one write persuasively? Here are some tips.

Writing to Persuade

Be specific about what the issue, question, or problem is. Writing a clear issue statement or specific question before you begin explaining your conclusion or answer can help keep your answer as clear and concise as possible and will ensure that your audience knows exactly what the issue is. A good legal question follows the format UNDER-CAN/DOES-WHEN. The format contains the following components:

the applicable law

the legal question

the key facts

Here is an example of how to set up a question in this format: I need to know if my client can file for divorce in Indiana. He and his wife have lived in Indiana for 5 months and separated last week.

My legal question then, is:

UNDER Indiana law [the applicable law], CAN a petitioner file for divorce [the legal question], WHEN he has resided in the state for 5 months and has been separated for 1 week [the key facts]?

Not only does the UNDER-CAN/DOES-WHEN format provide the reader with the precise question we are trying to answer, but it also gives anyone who wants to look for the answer the best keywords to use for a case law search, and provides them with the best place to start looking for applicable statutes. For example, in this case, the Indiana Family Law Code, which specifically controls divorce, with the keywords being ‘resided in Indiana for 5 months’ and ‘separated for 1 week’.

Present clear arguments. Writing a clear argument means following a well-defined ‘path’ to arrive at a specific conclusion. A clear argument holds the reader’s hand through the logic and leads them quickly and clearly, to the solution the writer had in mind. When writing for the Court, a clear argument follows the same logic that a higher Court has followed in the past. Of course, the best way to present a clear argument is to have case law that is controlling and on point. A case that is on point asks the same legal question and has similar key facts. It also uses the same law.

Support everything you can with facts and evidence. There is nothing more persuasive than supporting facts and evidence. Anything you write that can be proven true or likely to be true with a fact or a piece of evidence, should be followed by a description of the evidence or the fact that makes it more believable. For example, if I were to say that in Indiana, a Petitioner may not file for divorce unless one of the parties has lived in the state for at least 6 months, I would want to precede or follow that with a citation to and the text from the Indiana Code that says that. For example, I might say:

“Under IC 31-15-2-6, a Petitioner may not file for divorce in Indiana unless one of the parties has lived in the state for at least six months. The statute provides in relevant part:
(a) At the time of the filing of a petition under section 4 of this chapter, at least one (1) of the parties must have been:
(1) a resident of Indiana; or
(2) stationed at a United States military installation within Indiana;
for six (6) months immediately preceding the filing of the petition.”

Make your strongest arguments first. First impressions are made in writing, just as they are when meeting someone for the first time, and presenting your strongest argument first, helps to make the best first impression. It also sets the tone for the rest of the writing, lending you more credibility, and perhaps allowing the reader to look more favorably on your weaker arguments. There may be occasions, too, when a Judge does not read an entire brief, and having your strongest argument first, will ensure that it is read.

Anticipate the argument the opposing side is likely to make. Determining the potential weakness of your own arguments, and the counterarguments the other side may make is an important part of persuasive writing. This means analyzing the strength of your own position as well as that of the opposing parties. This allows you to discredit the argument of the opposing party before he or she makes it.

Ask for what you want. Spell out very clearly in your writing what it is that you want, for example, if you want the Court to rule that your client was not negligent, say so. Do not make your reader guess what it is that you want. Your request for relief should be in the conclusion of your writing, which may be only one sentence long, for short one or two issue writings, or can be several paragraphs long, for more complex issues and longer writings.

Choose your language carefully. A large part of persuasion is the words you choose to use. For example, if you are trying to convince a Judge that the other party exhibited oppressive conduct in his business dealings with your client, you could say:

“That statute that governs oppressive conduct is…”

Or you could take the more persuasive approach, and say:

“The statute that prohibits oppressive conduct by a majority shareholder is…”

The second choice makes it very clear that the conduct of the other party is prohibited and describes him as a “majority” shareholder in order to make the point that he is the party with the most power, thereby insinuating that he took advantage of your client as a weaker party.

Keep your goal in mind. Keep the main objective of your writing in mind throughout the writing process. This will help ensure that your arguments are clear and concise and that you stay on track, creating a path that leads directly to the conclusion you wish for your reader to come to. For example, if you are writing a brief for the Court, explaining why your client’s behavior was not negligent, remember that this is the point of your writing, and try not to veer off point with facts or information irrelevant to the issue of your client’s behavior.

Use proper grammar. Run on sentences, incorrect punctuation, and poor grammar can take away from what it is that you are trying to say in your writing. Grammar mistakes make a writer sound less credible and therefore less effective at persuading the audience to see an issue a certain way.

Spell check. Spell check. Spell check. While you may not think that poor spelling can make a writing any less persuasive, it can. Many find it difficult to believe a writer who cannot spell, or use the spell check function of his or her word processing program.