Emphasis:
An exchange I heard a few months ago -- I reproduce it from memory, so the account will not be precise, but I think I remembered the substance accurately:
[Talk had turned to effective legal writing; B is a smart soon-to-be-law-student.]
A. Another thing I learned about legal writing: Don't use exclamation points for rhetorical emphasis. And all-caps -- don't do that, either. Bold is also very bad. So is italics: It's OK to use it to highlight important terms in quotes, or terms that you're trying to distinguish from each other in your arguments, but don't use it as an exclamation point.
B. But what then are you supposed to use for rhetorical emphasis?
A. How about ... forceful arguments?
Related Posts (on one page):
- More on Rhetorical Emphasis:
- Emphasis:
Because it's the fastest on a computer I tend to use ALL CAPS to emphasize a single word or phrase. I realize that is very tacky-looking, so in formal writing I have always done it with italics.
I was fortunate enough to grow up in a household with 2 Ph.D.s plus a law degree (plus a 3rd Ph.D. when my step-mother came into the picture, all Ph.D.s being in the humanities). This stroke of fortune has done my writing no end of good, but leaves me perplexed sometimes at writings by individuals who believe that adding "!!!!!!!!" at the end of a sentence will strengthen their argument.
Or as Terry Pratchett so neatly put it: "Five exclamation points! The sure sign of a diseased mind."
B. Um... do you have a URL where I can download that font?
/ba dump ba
//I'll be here all week.
///Try the Veal...
You're crimping my expression here!!!!
Next are you going to say I can't use question marks either.
So I'm all like, what's a verb, dude.
Reasons for granting the writ
1. The Circuits have split on an IMPORTANT QUESTION OF LAW that, if not resolved by this Court, will CERTAINLY LEAD TO THE DOWNFALL OF THE REPUBLIC!!!!!
2. My client got TOTALLY SCREWED!!!
And how are you enjoying federal prison, Mr Moussaoui?
There is a “critical difference ‘between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.’” Rosenberger v. Rector &Visitors of the Univ. of Va., 515 U.S. 819, 841 (1995) (internal quotation marks omitted; emphasis in original).
That's true enough, but for every one of those in a typical brief or memorandum, there's 10 examples of either overuse of emphasis with respect to things that aren't all that important ("Plaintiff fails to allege any injury beyond a generic statement that he has been damaged.") or use of emphasis to imply some sinister point but without any explanation of what the point is (in a property proceeding in a divorce case where the only issue is the formula for dividing business goodwill: "Husband, now married for the third time, urges the Court to adopt a flatly implausible formula.").
Better to err on the side of not using it. Really, even the Rosenberger quotation would be fine without emphasis too. We can figure out the point.
Italics, et al.: First, I wouldn't use ellipses this way in a brief.
Second, I'm surely not against typographic signals generally. Rather, there are specific problems with signals that are aimed at providing rhetorical emphasis, and that are used in persuasive writing. The most important problem is that many readers see these signals as attempts to persuade through typography rather than through forceful argument; this annoys the reader, and diminishes the writer's credibility. A related problem is that they make the writer seem overexcited, which also diminishes the writer's credibility.
Subjunctive/Indicative? Come on.
Any ideas on when I can use the smiley emoticon in a brief? :)
In cases where (as an engineer) I often write documents that some people may simply skim but others may read in detail.
To deal this uncertainty, I find liberal bolding to be a useful tool. That is, after writing a polished document which involves no formatting, I will go through the document and bold an average of ~1 phrase or sentence per paragraph that I believe is of particular importance.
If I were positive that all my readers would read every word, however, I would skip all the bold for sure.
I clerked for a state supreme court justice who graciously allowed my co-clerks and I to erect and maintain a "Legal Writing Wall of Shame" on which we posted excerpts from certification petitions or merits briefs that contained particularly egregious violated the principle described by Prof. Volokh in this post.
The examples were always hilarious and searching for new additions helped relieve some of the drudgery of reading the otherwise stupefyingly bad arguments that could reliably be found in work containing good candidates for the Wall of Shame.
One example I recall quite clearly included an advocate’s desperate assertion that that the actions of an opposing party had rendered his client’s life “a LIVING HELL!!!!” Seriously: all caps, bold, underlined, with multiple exclamation points.
NB – For those who might be offended by our gentle teasing, I add that we always diligently redacted any mention of a party or attorney in the posted examples.
BTW, anybody remember Dennis Rodman or Keyshawn Johnson's books from ten years ago? Yikes! Hardly formal writing of course, but they were entirely written using bizarre boldface and resizing choices, making them virtually unreadable.
"...on which we posted excerpts from certification petitions or merits briefs that contained particularly egregious violations of the principle described by Prof. Volokh in this post."
------------
Apologies.
Please, tell me you're joking.
Did elementary schools and secondary schools stop teaching proper citiation methods?
At least at my law school, legal writing and research was theoretically "taught" by an assistant professor apparently not on a tenure track aided by a gaggle of legal writing teaching assistants who could not teach and knew nothing about persuasive legal writing.
Steve, Dilan Espar, and AF all make excellent points and I can add little to their commentary.
RandyR: Feel free to use emoticons anytime you are my opposing counsel. ;-)
Someone who writes: "I clerked for a state supreme court justice who graciously allowed my co-clerks and I to erect and maintain a "Legal Writing Wall of Shame" .... should get stapled to the Wall for abuse of the nominative case of the personal pronoun.
--
It's well known that engineers can't write; we should be grateful that they bold the important stuff so that we can skip the rest.
So sue me.
I bought Keyshawn's book last Christmas (for $1) as a gag gift for a friend who is a huge sports fan. I've absolutely never seen anything like it. Each sentence would go from twelve point font, to twenty point font, to eight point font, to bold, to italics, to bold and italics. It was unreal, and unreadable. Quite unintentionally hilarious.
Speaking of sports autobiographies (but woefully off topic otherwise), my college roomate was a big wrestling fan, and he had Hulk Hogan's autobiography. There was no bolding that I remember, but every other word was "brother." Instead of "It was a hard fought match" he would say "And let me tell you, brother, it was a hard fought match." I guess the (real) author was trying not to sound too intellectual, and thought that Hulk's fans would appreciate him more if he wrote the way they spoke. But, lord! I think if you took out all the surplusage and rewrote it as a series of simple noun-verb-object sentences, the book would've been about 35 pages long.
Meshawn!: "But, lord! I think if you took out all the surplusage and rewrote it as a series of simple noun-verb-object sentences, the book would've been about 35 pages long."
I believe Twain made a similar observation as to what would be left of the Book of Mormon if you removed all repetitions of "And lo, it then came to pass. . . "
r gould-saltman
1. Edit down.
2. Signpost via
2a. Pithy headings, and
2b. Topic sentences.
you weren't kidding about keyshawn's book.take a scary look inside.
Apparently it was ghost written by Curt Fischer.
Dave N. hits the nail on the head here, I think, and unfortunately it continues to be the case that professional schools as well as 4-year colleges emphasize content knowledge (theory) over application (practice) as though the former is of greater, not equal, significance. What surprises me is that this remains the case despite three decades of scholarly research supporting the basic understanding that writing simply is not an especially portable skill (i.e., if you want someone to write a legal brief well, you have to actually explain what makes a "good" legal brief "good" in the first place--it's not self-evident to most writers). There is no single literacy that a student learns once and for all that prepares them to write anything well.
Of course, it doesn't help that there seems to be no widely-recommended resource on the rhetoric of legal writing; the Blue Book, the only widespread writing resource for lawyers of which I'm aware, is largely devoted to citation conventions, not the importance of adapting one's style, structure, and overall presentation options to a specific audience meeting a specific purpose, with relevant examples that demonstrate those facets of legal writing.
Thanks for helping me out guys!
1. An observation made by a friend, who upon receiving one too many angry political polemics, posted "IF! ONLY IT WERE TRUE! that frequent use of capitalization and exclamation marks!! made my writing! MORE PERSUASIVE!!"
2. The apocryphal story about the fetching young student who enters the professor's office and says "I'd do anything to make a good grade in this class." The professor, raising an eyebrow, asks: anything? The student avers: anything. So the professor asks: "Would you ... study?"
I don't follow your argument here, but I confess I did not read each sentence in detail and with full attention.
Meanwhile, it is somewhat ironic that you used the word "therein."
Seriously, I use either italics or bold-faced fonts when I have a block quote from a case, and want to call attention to a few key words in the quote.
As for headings, it amazes me how few lawyers use them well. One attorney I know creates headings that are far too long to read or understand (even though the lawyer is otherwise an excellent writer). I have seen others use too few headings, and some use too many.
1: use sparingly. (I generally have a hard time following this one, but I do try.)
2: read the sentence out loud. If, in speaking to the court, you would emphasize that word, it's okay to emphasize.
3: emphasizing logical connectors can be useful. The words IF AND OR BUT etc. are very important. If you're trying to explain a complicated test, emphasizing how the parts fit together is useful.
Plus, the experience is much better. The academic context tends towards pathetic, sluggish timelines. (Consider: two months to write a brief for moot court class.) At a real job, two weeks would be a luxury (depending on the type of brief). You get a lot more experience that way.
Get your writing skills in order in high school and college. That's largely what undergrad is for (learning how to think and how to write). The purpose of undergrad can't be to teach special skills because all of those skills could be learned faster by apprenticing at a job.
Shameless plug on behalf of our host: if you want to write good in the academic legal context, buy E.V.'s book.
The plaintiff's argument totally misses the point! Section 157 of the Act does not even come close to covering the facts of this case!
The plaintiff's argument totally misses the point. Section 157 of the Act does not even come close to covering the facts of this case.
The plaintiff's argument totally misses the point. Section 157 does not even come close to covering the facts of this case.
The plaintiff's argument misses the point. Section 157 does not cover the facts of this case.
I think we know better. A brief of any significant length will include a table of contents that has, in addition to topic headings, key sentences. So if you read the table of contents of a well-drafted brief, you have the essence of the argument.
I agree, but not everything is a brief. I have a lot of different sets of rules for different documents. The one general rule is to set up a style for the document as a whole and stick to it.
A presentation handout may have the "paragraphs" broken up, for example, with the topic sentences in bold or in a distinctive font and the individual points under each topic in a numbered or bulleted list.
This format is not any more radical, conservative, persuasive, or unpersuasive than a brief. It's just a different way of setting down words on a page, and it has its own conventions.
The main difference is that lawyers are expected to know the brief-writing conventions that other lawyers know. When lawyers write other documents, we have a lot more freedom to design our own styles. Similarly, scientists may have to follow very specific rules in their journal articles, even if they have a lot more leeway in non-academic writing.
As for your point about "getting your writing skills" in high school and college: your comment basically ignores half my point. There isn't a single "writing skill" that's going to make you a competent writer of all genres all the time. It simply doesn't work that way. (See the discussion "Unsupported Assumption #2" and its bibliographic references in this online white paper.) So at some point, whether that's during law school or in an apprenticeship at a law firm, the new lawyer needs practical experience in writing for specific genres (briefs, memoranda, etc.). I assume (wrongly perhaps) that by the time the student is graduated and working for a firm, the stakes are higher than they would be in a law school course, meaning that the firm puts a novice under incredible pressure to perform flawlessly in writing an essentially unfamiliar genre under short deadlines.
The place to learn legal writing, it seems to me, is in law school where the stakes are relatively low, where your career isn't at stake b/c you embarrass your firm with sloppy, untested writing. And just b/c the academic context presently offers a "sluggish" pace for this type of learning doesn't mean it must be that way. If anything, I'm suggesting that it's the law school's approach to writing instruction that may need reform: the research on writing skills improvement shows that students need frequent writing opportunities (of both low- and high-stakes variety) in order to learn and improve writing skills in particular contexts, so a slow turnaround time on writing assignments in courses is itself part of the problem.
If I happen to know a judge or his/her staff, I'll bend all sorts of rules. Knowing their pet peeves and their senses of humor can open the door to rhetorical techniques that I would not use otherwise.
Knowing the judge's predisposition to certain issues, types of arguments, your opponent and yourself, and generally being familiar with his/her style of communication, helps you decide whether to load up on rhetoric, or tone it down. If you're confident you can generate a belly laugh in chambers, then break that rule and exploit the opportunity!!!!!
Alex R., qwerty1 has it right. There are so many different requirements in so many different areas of the law that it is difficult to sum them up in a blog comment. Some requirements are contained in court rules. Others in statutes, agency rulings or regulations. In general, however, the requirements are designed so that the emphasized text will be more readily apparent to a person reading the label, disclosure, license, or whatever. As to your specific question, I'm a bankruptcy lawyer by trade, so don't have much knowledge of EULA requirements. Companies often use bold or caps even when not required by law so that they can later say that they went to greater lengths to ensure that some important bit of text actually got noticed.
This is, of course, all very different from the persuasive writing that Eugene's original post seemed to reference. I agree that typographical emphasis is frowned upon in briefs.