by Brian Porto, Esq.
Making It Sing: How Rhetorical
Techniques Can Improve Your Writing
Legal Writing Need Not Be Dull
The late Professor Fred Rodell of Yale
Law School once observed of legal writing,
“I am the last one to suppose that a piece
about the law could be made to read like
a juicy sex novel or a detective story, but I
cannot see why it has to resemble a cross
between a nineteenth century sermon and
a treatise on higher mathematics.”1 Those
words, written in 1962, still ring true today,
as any law student reading judicial opinions
and any judge reading lawyers’ motions
and briefs can attest.
Several likely culprits account for the
poverty of style in much legal writing. First,
many of the topics that must be addressed
(e.g., sovereign immunity, laches, or the
statutory standard for modifying a spousal
maintenance order) are not inherently engaging. Second, lawyers often face considerable time pressure while writing; hence
they are satisfied with pleadings and appellate briefs that are clear, grammatically correct, and reasonably concise. Rhetorical elegance may be a luxury they feel unable to
afford. Third, they probably did not learn
how to write elegantly in law school because the writing professor was necessarily
preoccupied with purging comma splices,
the passive voice, and hoary legal jargon
from a small mountain of papers.
Consequently, unless a lawyer uses uncompensated time to learn how to write elegantly, that lawyer will at best write serviceable, but unmemorable, prose, thus
foregoing an extra edge that could mean
the difference between winning and losing a case. To give you that extra edge, this
article will present rhetorical techniques
you can use to dress up your prose without bloating it with adjectives or otherwise
sacrificing the clarity and brevity that legal
writing requires. For examples, it will draw
on the work of several of the Supreme
Court’s best writers, who used rhetorical
techniques to produce some of the most
momentous opinions in the Court’s history.
Rhetoric: A Short History
The word “rhetoric” has a negative
connotation these days, calling to mind
“meaningless political exaggeration or
mere stylistic embellishment.”2 But rhetoric is a venerable discipline, dating back to
the ancient Greeks. Rhetoric is most succinctly defined as “the art of civic persua36
sion.”3 Its importance to public discourse
is reflected in the words of its most prominent practitioner, Aristotle, who said, “[I]t
is not enough to know what to say—one
must also know how to say it.”4
Despite its classical pedigree, rhetoric
was controversial even in ancient Greece;
indeed, Plato (Aristotle’s teacher) had no
higher opinion of it than do modern voters
who use it to characterize what they perceive as empty promises by politicians at
election time. In Plato’s view, rhetoric was
manipulative and unable to lead to truth;
only “dialectic” (philosophy), a reasoned
exchange of ideas between two scholars,
could reveal the truth.5 Put simply, Plato
thought rhetoric lacked intellectual substance. Rhetoric likely got its bad reputation from the Sophists, contemporaries of
Plato who were courtroom advocates and
teachers of rhetoric known for trying spurious lawsuits, thereby spawning the term
“sophistry” to denote clever, but false argument.6
Aristotle, however, defended rhetoric,
arguing that a rhetorician attempts to persuade not only by appeals to the emotions
(pathos), but also by appeals to logic (logos) and by demonstrating an ethical character (ethos). Therefore, in Aristotle’s view,
rhetoric served justice rather than thwarting it, by facilitating the consideration of
opposing viewpoints, which begets truth in
the courtroom.7
Rhetoric was out of favor in American legal education during the nineteenth century, as law schools adopted a truth-seeking
“scientific” approach to teaching law that
cared not for how a legal argument was
presented, only for the truth of its contentions. By the turn of the twentieth century,
though, rhetoric began to enjoy a renaissance, as Plato’s quest for absolute truth
had become outdated, and scholars increasingly saw truth as relative and the offspring of a rhetorical process.8 Nowhere is
such skepticism more evident than in the
famous statement by Justice Oliver Wendell Holmes, Jr., that “[t]he life of the law
has not been logic; it has been experience.”9 Implicit in that statement is the recognition that judges decide cases not by
finding absolute truth, but instead, by reconciling competing and relative interests,
which necessarily involves subjective judgment.10 More recently, Judge Richard Posner of the Seventh Circuit has written that
rhetoric is important because “many legal
THE VERMONT BAR JOURNAL • SUMMER 2014
questions cannot be resolved by logical
or empirical demonstration.”11 Put another way, no matter how compelling an argument one can make that the Supreme
Court decided Lochner v. New York wrongly, “[i]t’s impossible to prove Lochner was
decided wrongly.”12
Using Rhetorical Techniques
in Legal Writing
Imagery
Legal writing can benefit from several
rhetorical devices, including imagery, figures of speech, word choice, rhythm, and
literary allusion.13 Vivid imagery is always
more memorable, hence likely more persuasive, than colorless or muted language.
For example, if you were writing the statement of facts for a memorandum or brief
in a drunk-driving case, you could write:
“On his way out the door, Smith staggered
against a serving table, knocking a bowl
to H