Legal Writing

A novelist/academic’s views on persuasive writing

A lawyer in one of my LinkedIn groups alerted the group to an interesting article that gives a non-lawyer’s perspective on persuasive writing. Introducing the article, St. Louis attorney Daniel Schramm notes:

When I was a law student, we were taught how “to write like a lawyer.” This article suggests lawyers would be better served if they follow the modern trend to make arguments simple and easy to read.

At first, this did not make sense to me. “Writing like a lawyer” and “simple and easy to read” are not mutually exclusive concepts, and any lawyer who thinks they are is in big trouble. But after reading the article, I realized Schramm was not asserting such a dichotomy, but something else.

The article itself is from legal writing guru Bryan Garner, and excerpts his interview of writer David Foster Wallace. From the Wikipedia page on Wallace:

David Foster Wallace (February 21, 1962 – September 12, 2008) was an award-winning American novelist, short story writer, essayist, professor of English at Illinois State University, and professor of creative writing at Pomona College. Wallace is widely known for his 1996 novel Infinite Jest, which was cited as one of the 100 best English-language novels from 1923 to 2005 by Time magazine.

From the article, here is just a part of Wallace’s advice on what the “middle” of a persuasive piece should do (my emphasis):

The middle should work. It lays out the argument in steps, not in a robotic way, but in a way that the reader can tell (a) what the distinct steps or premises of the argument are; and (b), this is the tricky one, how they’re connected to each other. So when I teach nonfiction classes, I spend a disproportionate amount of my time teaching the students how to write transitions, even as simple ones as however and moreover between sentences. Because part of their belief that the reader can somehow read their mind is their failure to see that the reader needs help understanding how two sentences are connected to each other—and also transitions between paragraphs.

That got me thinking about the function of argumentative headings in appellate briefs. Do lawyers use argumentative headings to fulfill this “connecting” function? Should they?

Argumentative headings obviously need to be more than “connectors.” In fact, California court rules require that each argument be identified in a heading, lest it be deemed waived. One bit of advice most of us learned in law school is that headings should be written so that the table of contents alone is persuasive. Does that mean they should serve as transitions, too?

Maybe not.  Wallace’s comments suggest an exercise for evaluating your brief, which is the opposite of looking at the table of contents alone (and this, I think, is what the LinkedIn poster meant): if you stripped the argumentative headings out of your brief, could your reader still see the connections among your arguments?

I’m not sure that the answer has to be “yes” in every case. After all, most writing maxims have some elasticity. Writing as if argumentative headings aren’t there might actually be counter-productive for some arguments. Consider, for example, an argumentative heading over a single paragraph of text. Including a topic sentence and transition in that paragraph that essentially repeats the heading might make for cumbersome reading. Maybe it’s okay in those instances for a heading to serve as both identifier and transition, without the need for a transition in the text. Then again, there may be judges out there who deliberately “read around” the headings to get a feel for your brief without them — can you risk leaving them clueless?

I haven’t really thought about this too deeply before, but I now want to try an experiment. On my next brief, I am going to ask a colleague unfamiliar with the case to read a draft that has been striped of its headings and then give me his opinion as to whether the arguments seem connected and persuasive in that form. That should be interesting.