10.2 Techniques for Persuasive Legal Writing

Legal writing is all about persuasion. Mastering rhetorical devices and techniques can make your arguments more compelling and memorable. From metaphors to ethos, pathos, and logos, these tools help you connect with readers and drive your points home.

But it's not just about flashy language. Crafting strong intros and conclusions, using analogies effectively, and anticipating counterarguments are crucial skills. By honing these techniques, you'll be able to write briefs and memos that truly persuade.

Rhetorical Devices for Persuasive Legal Writing

Using Linguistic Tools to Enhance Persuasion

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• Employ repetition of key words, phrases or themes to emphasize important points and make arguments more memorable ("justice delayed is justice denied")
• Pose rhetorical questions to engage the reader, highlight crucial issues, and encourage agreement with the writer's position ("How can we tolerate such blatant discrimination?")
• Create metaphors comparing abstract legal concepts to concrete, relatable ideas to help the reader understand and remember the arguments (referring to weak evidence as a "house of cards")
• Craft similes using "like" or "as" to make vivid comparisons that illustrate the writer's points (saying a defendant's actions were "like playing Russian roulette with people's lives")
• Use alliteration by repeating initial consonant sounds in a series of words to make phrases more catchy and impactful ("callous, cold-hearted and calculating")

Persuasive Writing Techniques

• Present logical arguments (logos) using facts, statistics and examples to demonstrate the validity and rationality of the writer's position
  • Cite relevant case law, statutes and regulations to show the legal basis for arguments
  • Provide data demonstrating the severity or scope of a problem to justify proposed solutions
  • Include specific examples illustrating the real-world consequences of the issues
• Establish credibility (ethos) by emphasizing the writer's expertise, trustworthiness and goodwill to inspire confidence in their arguments
  • Highlight the writer's legal qualifications, experience and knowledge of the issues
  • Demonstrate fair and balanced consideration of different perspectives to show trustworthiness
  • Express concern for justice, fairness and the public interest to convey goodwill
• Evoke emotional responses (pathos) like sympathy, anger or fear to influence the reader's judgment
  • Include vivid descriptions of sympathetic individuals affected by the issues to generate compassion
  • Use strong language conveying outrage or injustice to arouse anger at wrongdoing
  • Warn of the dire consequences that may result if the writer's position is not adopted to instill fear and motivate action

Emphasis Techniques and Framing Issues

• Write in active voice to make arguments more direct, concise and forceful ("The defendant robbed the bank" instead of "The bank was robbed by the defendant")
• Strategically organize arguments by placing the strongest points first and last within sections to emphasize their importance and maximize their impact on the reader
• Vary sentence lengths and use short, punchy statements to make crucial points stand out ("Justice requires overturning this verdict. There is no other choice.")
• Frame issues by carefully selecting words and phrases that put the writer's position in a favorable light
  • Choose terms with positive connotations to describe the writer's side ("safety regulations" instead of "burdensome rules")
  • Emphasize favorable facts and mitigating circumstances while still being truthful
  • Acknowledge but downplay negative facts by placing them in dependent clauses or later in paragraphs

Compelling Introductions and Conclusions

Engaging Introductions

• Immediately capture the reader's attention with a provocative question, surprising fact, vivid anecdote or powerful quote related to the key issues
  • "What is the price of justice? For my client, it has been ten years of wrongful imprisonment."
  • "In 2020, over 5,000 people died from distracted driving crashes, equivalent to a major airline crash every two weeks."
  • "When Sarah Smith left for work on June 1st, she had no idea her life was about to change forever."
  • "'Injustice anywhere is a threat to justice everywhere.' Martin Luther King Jr.'s words ring true in this case."
• Clearly state the main issues and writer's position upfront to establish the purpose and themes of the document
  • "This case presents the question of whether the state's new voting law violates the Voting Rights Act by disproportionately burdening minority voters."
  • "The appellant should prevail because the trial court abused its discretion in excluding critical expert testimony."
• Preview the structure of the arguments to provide a roadmap for readers to follow
  • "First, this brief will demonstrate that the statute is unconstitutional under the First Amendment. Second, it will show that even if the law is constitutional, the defendant's conduct did not violate it."

Persuasive Conclusions

• Forcefully restate the main points and most compelling reasons to adopt the writer's position
  • "As demonstrated above, the evidence clearly establishes the defendant's negligence, the plaintiff's damages, and the absence of any contributory negligence."
• Summarize the key arguments and facts in a concise, memorable way that drives home the writer's themes
  • "This case boils down to a simple question: Will the court allow an innocent child to suffer for the rest of his life because of one doctor's reckless mistake?"
• End with a strong call to action urging the reader to implement the writer's proposed solution
  • "For all these reasons, we respectfully request that the court grant summary judgment in favor of the plaintiff."
  • "The only just outcome is to vacate the defendant's conviction and grant a new trial."
• Use bookending techniques to create a satisfying conclusion that ties back to the introduction
  • Callback: "So I return to the question I posed at the beginning: What is the price of justice for my client? The answer is simple: overturning this wrongful conviction."
  • Rule of three: "The contract is unenforceable because it violates the statute of frauds, it lacks consideration, and it was induced by fraud."
  • Changing perspective: "When you deliberate, I ask you to put yourself in my client's shoes and ask what you would have done differently in that terrifying moment."

Analogical Reasoning and Case Distinctions

Comparing Cases to Support Arguments

• Draw analogies between the present case and binding precedents or persuasive authorities with similar fact patterns to argue the same legal rules and reasoning should apply
  • "Like the defendant in Smith v. Jones, the defendant here had no duty to warn the plaintiff of the dangerous condition on his property."
  • "The Supreme Court's recent decision in Doe v. State is directly on point and compels a ruling in favor of the plaintiff."
• Identify and explain the key similarities between the cases, including the relevant facts, legal issues, and reasoning
  • "Both this case and Miller v. Johnson involve a contract for the sale of goods over $500, an oral agreement, and a defendant who failed to deliver the promised goods."
  • "The two cases present nearly identical Fourth Amendment issues: whether the police had probable cause to search a suspect's home without a warrant."
• Argue that the similarities between the cases are substantial enough that the court should reach the same conclusion in the present case
  • "Given the striking parallels between the two cases, this court should follow the holding in Brown and grant summary judgment for the defendant."

Distinguishing Cases to Minimize Negative Impact

• Identify key factual or legal differences between an unfavorable precedent and the present case to argue the prior holding is inapplicable or unpersuasive
  • "Unlike the plaintiff in Smith, who was a trespasser, the plaintiff here was an invited guest on the defendant's property."
  • "The court's ruling in Doe was based on a state constitutional provision that has no equivalent in our jurisdiction."
• Explain how the differences between the cases are material and undermine the relevance or persuasiveness of the unfavorable precedent
  • "Because the plaintiff's status as an invitee creates a higher duty of care, the defendant's lack of actual knowledge of the hazard is not dispositive here, as it was in Smith."
  • "The absence of a similar constitutional provision means that the reasoning in Doe is wholly inapplicable to this case."
• Argue that the court should reach a different conclusion in the present case because of the distinguishing facts or legal principles
  • "In light of these critical distinctions, this court should not follow the holding in Johnson but should instead find that the plaintiff has stated a viable claim for relief."

Anticipating and Addressing Counterarguments

Identifying Potential Counterarguments

• Carefully consider the facts and legal issues from the opposing party's perspective to identify their most persuasive arguments
  • "The defendant will likely argue that the contract is unenforceable under the statute of frauds because it was not in writing."
  • "The plaintiff may contend that the police lacked probable cause for the search because the informant's tip was not corroborated."
• Acknowledge any weaknesses in the writer's own arguments or evidence that the opposing side might exploit
  • "While it is true that my client did not read the entire contract before signing it, this does not excuse the defendant's fraudulent misrepresentations."
  • "Although the eyewitness's testimony was somewhat inconsistent on minor details, she was unequivocal on the key point of the defendant's identity."

Refuting Counterarguments

• Directly address and rebut the opposing side's likely arguments using legal authorities, facts, and reasoning
  • "The statute of frauds does not apply here because the contract was fully performed within one year, which is a well-established exception to the writing requirement."
  • "Even if the informant's reliability was not definitively established, the totality of the circumstances, including the suspect's criminal history and the officer's observations, provided probable cause for the search."
• Distinguish unfavorable cases the opposing side may rely on by highlighting key factual or legal differences
  • "The cases cited by the defendant are inapposite because they involved oral contracts that could not be performed within one year, unlike the present case."
  • "The plaintiff's reliance on Smith v. Jones is misplaced because that case involved an anonymous tip, whereas here the informant was known to the police and had provided reliable information in the past."
• Concede minor or indisputable points to build credibility while emphasizing the most important issues that favor the writer's position
  • "While the plaintiff correctly notes that the contract was not in writing, this fact is ultimately irrelevant because the statute of frauds does not apply to contracts that have been fully performed."
  • "Although the defendant is right that the officer did not corroborate every detail of the informant's tip, the key facts supporting probable cause were independently verified."

Organizing Counterargument Responses

• Decide whether to address counterarguments within each section of the argument or to consolidate them into a separate section based on their strength and the overall flow of the document
  • Integrated approach: "The defendant may argue that the plaintiff assumed the risk of injury by participating in the sport. However, the assumption of risk doctrine does not apply when the defendant's conduct is reckless or intentional, as it was here."
  • Consolidated approach: "The plaintiff has raised several arguments in opposition to summary judgment, none of which have merit. First, the plaintiff contends that... Second, the plaintiff asserts that... Finally, the plaintiff argues that..."
• If using a consolidated approach, consider addressing counterarguments in order of increasing strength to build momentum and end on the most persuasive refutation
  • "The plaintiff's weakest argument is that... The plaintiff's next contention is somewhat stronger but ultimately unpersuasive because... The plaintiff's final and most compelling argument is that... However, this too fails because..."