Appellate Practice Committee Blog Post

March 17 2016 | Committees

Don’t be so emotional

All good writers know that it is a mistake to offer an overblown characterization of the facts.  Nobody likes to be told what to think.  Much better to set forth the facts in a way that any reader will see them the way you do. 

Now there is empirical proof.  In a recent study, political scientists used an automated textual analysis program to determine whether briefs filed in the US Supreme Court fare better or worse when they employ emotional language.  As set forth in the abstract to their article, they found “that parties who employ less emotional language in their briefs are more likely to win a justice's vote, a result that holds even after controlling for other features correlated with success, such as case quality.”  Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, and Eve M. Ringsmuth, The Role of Emotional Language in Briefs Before the U.S. Supreme Court (December 15, 2015).  To read the abstract and download the study, follow this link: http://ssrn.com/abstract=2703875 .

New book on legal writing

Everyone has heard of Bryan Garner’s books on legal writing.  Here is another excellent resource just published:  T. Goldstein & J. Lieberman, The Lawyer’s Guide to Writing Well, 3rd Edition (2016).  Goldstein is Professor of Journalism and Director of the Media Studies Program at the University of California, Berkeley.  Lieberman is Martin Professor of Law Emeritus at New York Law School, where he was the director of its writing program for nearly a quarter century.

This new third edition of their book is a pleasure to read.  You can flip open to any page and be entertained.  But it also presents specific do’s and don’ts, as well as ten concrete steps for legal writing, with lessons along the way.  For example, on the above problem of force-feeding the reader, they offer this:

In all cases, the primary rule of persuasion is to let the facts shape the argument.  Facts are more persuasive than characterizations and conclusory statements because they are, or appear to be, independent of the self-interest of the lawyer and client.  To make the case that a person is unsavory, you are unlikely to succeed simply by labeling him ‘nasty’ or ‘a scoundrel.’  But if you can show that once in a fit of rage he kicked his own grandmother, you will provide your readers with the factual basis on which they can draw your conclusion.    

Id. at p. 81.  That’s good advice.  Among other retailers, you can buy the book here:  http://www.amazon.com/Lawyers-Guide-Writing-Well/dp/0520288432/ref=sr_1_fkmr2_1?ie=UTF8&qid=1457549823&sr=8-1-fkmr2&keywords=the+lawyer%27s+guide+to+writing+well+third+edition


Written by: Martin Stern, Appellate Practice Committee Chair



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