Law students and young lawyers often miss one of the most important parts of their writing: Credibility. Because with the right credibility, you can persuade even the most skeptical readers.
Your reader can’t see you; they can’t hear you. Everything about who you are must spring from the words on the page. Stated differently, you must build a written version of yourself from the feet up. And your written-self better be pretty freaking awesome.
As I write this, how do you see me? Have I convinced you that I’m someone you can trust? Perhaps a little. But do you trust me enough to put your reputation on the line? Say, to take my words, sign your name to them, and send them off to be published to the world? Because that is what you ask a judge when you submit a motion or brief.
To put your best written self forward, consider crafting three types of credibility (1) the expert, (2) the confidant, and (3) the smartest person in the room. This is not too far afield from Aristotle’s three forms of persuasion through emotion (showing your listener that you have good sense, good character, and good will). But with some modifications for us lawyers.
Each of these personas will reassure your reader, in various ways, that you are worth listening to. And ultimately, worth trusting.
Your first persona is the expert. She knows how her client works, how the market works. She has been handling this particular species of case for years. She understands the practical ins and outs. She knows how these cases go on appeal. This persona will reassure judges that you’ve thought about the bigger picture and the repercussions–that your approach will make sense to the real world.
How to build this persona:
- Include background facts in your brief that explain how the law intersects with the real world–facts about your client, the opposing party, and the bigger environment they operate in. You are subtly showing the judge that you’ve been around the block.
- Including some industry-speak can be helpful, but you must quickly explain or define any of this language. And if it’s not intuitive or easy to understand, skip it.
- If possible, refer to your judge’s past cases or at least some local cases. This shows that you are a frequent flyer to the court (even if you are really a newbie!).
- Lock down the local rules and cross-cite to them for any procedural issues–this will also show the judge you know how things are done in that court.
- Show the judge your experience with these types of cases by discussing case law with a familiarity that makes it seem like you’ve been here before (even if you haven’t). Style moves can help here, like familiar words and easy-to-read, intimate summaries of important authority in that legal field.
- Be able to talk about trends in the law and what well-known or reputable authorities have done with an issue.
The next persona is about you as a person. It’s about being honest and dependable. The type of person others turn to for important projects. The type of person who won’t get caught up in their emotions or ego. Steady. A straight shooter.
Viacom used choice details instead of cheap characterizations to keep their credibility in the YouTube v. Viacom case. For example, Viacom wanted the YouTube founders to look like people out for a quick buck who didn’t care about the consequences. Instead of saying that themselves and sounding argumentative, they quoted the founders themselves, who had stated in documents that their “dirty little secret . . . is that we actually just want to sell out quickly . . . concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics.” This is much better than trying to characterize the facts for yourself.
How to build this persona:
- Concede when you have losing arguments; admit when issues are tough.
- Even if you can’t concede anything important, at least point out where you agree with the other side–this shows you are not fighting just to fight.
- Carelessness will kill your credibility. Pay attention to the little things so that the judge knows that if she steals from your brief, she knows you didn’t miss something important.
- Make your brief user friendly. Always think of ways to help the judge find information and track down references or cross-references.
- Cut most adverbs and adjectives that tell your reader what to think; instead, let choice details speak for themselves so that the judge views you as the honest messenger.
- Shed the argumentative, judgmental tone. Science shows that this style, in fact, makes your reader less receptive to your arguments and increases their skepticism about what you say. You become a salesmen instead of a teacher or intermediary. So, no using “clearly, obviously, very clear” and the like.
- Your facts should be told in a story-form that persuades through your choice of details and subtle moves, like sentences that deemphasize bad facts. If you are calling another party’s actions “atrocious” or contend they are “flagrantly violating the rules,” you are not building the confidant persona. You just sound like every other hawker.
- Generalities and conclusory statements insult your reader’s intelligence. If you are genuinely summarizing or introducing, fine. But blanket generalizations that you can’t back up just highlights your weaknesses.
- Never ignore the bad facts–in the law and story. Nothing makes you look shadier. And when the judge or clerk notices what’s missing, you just did the other side a favor and made the bad stuff more obvious.
The smartest person in the room
Finally, you have to be the smart one. You have to be so smart, in fact, that the judge thinks of you like a teacher, walking her through the complexity like it’s a breeze. You should have such a clever way of looking at the cases and issues that the judge wants to take your brief–turn it into an opinion–and look good by osmosis. And let’s just be honest: we trust smart people. We think they must know what they’re talking about. We resist disagreeing with them–after all, we see things just like they do (because we’re smart, too!).
How to build this persona:
- Spend enough time editing your prose that your writing has a luster. It must be crisp, fluid, and engaging.
- Use fresh nouns, vivid verbs, and sentences that subtly emphasize and guide through their structure.
- Transitions must connect every sentence, paragraph, and section until the entire document reaches a state of pure fluidity.
- Your document must be excellently organized so that the reader is never lost: headings are readable and make sense, introductions give the reader enough context to understand your points, and nothing comes as a surprise.
- Spend enough time wrestling with the law and authority until you are able to explain how it works to a lay person–like a journalist must. The simpler you can explain tough concepts, the smarter and more credible you look.
- To really get there, incorporate advanced writing moves (which I’ll continue to cover in future posts) like sentence structures that break the rules (punchy fragments, appositive clusters, rhetorical flourishes, and an endless array of others); figurative language, or powerful examples or comparisons.