Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, June 9, 2018

What a Doctor of Design Can Teach You About Legal Writing

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I’m always on the lookout for an interesting book or new research that might offer something to us legal writers. This week I found insightful advice hidden in a cranny I would never have thought to search: A book on design. 

The book is Susan Weinschenk's "100 Things Every Designer Needs to Know About People." Weinschenk is a seasoned behavioral scientist who has spent thirty years applying psychology to the design of communication. Who better to ask for advice on legal writing? And Weinschenk's insights do indeed echo many of the great ideas percolating across the legal writing community, if with some twists.

Let me say, the whole book is worth a read. Weinschenk brings her considerable knowledge and experience to bear on some fascinating topics, many of which are useful to legal writers. Like: 

Which parts of a written page are shown to grab and hold a reader's attention?

What can you add to your writing to help make memories stick? 
Why do the things in our periphery sometimes end up being just as important as the things we try to focus on? 
How can you retrofit your communications to be boredom-proof? 
How do you motivate people to continue reading, even when they don't want to?
And then some purely visual stuff: What line length for text is best? And are some fonts better than others?

In case you don't get around to reading it, I thought I'd share some of what I found useful. 

Weinschenk talks a lot about a problem that we are all familiar with: readers distract easily. A reader might  try her best to read your piece carefully. But keeping focused throughout an entire legal document is no easy chore. And if your reader is busy (as most lawyers and judges will be) finishing the entire thing at once is impossible. 

I loved Weinschenk's advice for this problem: make your document cat-video friendly. In short, make your writing so easy to start and stop—in every section—that your reader won't dread coming back and reading more after a session of clicking around on the interwebs.

So how do we do that? 

First, your headings must be both informative and skimmable. They must dish enough information that your reader won’t need to read farther into the section’s text to find her place. At the same time, headings must be simple and readable enough that a quick skim will get the job done. If your headings are essentially block quotes of dense text, just about anything else will sound more appealing than returning to your document. 

The same goes for paragraphs. The distracted reader will be grateful if the first sentences of your paragraphs are both informative and skimmable. It allows her to not only find the section that matters, but the particular paragraph she cares about. Relatedly, by keeping your paragraphs and sections on the short side, you break up ideas into manageable pieces so that the distracted reader can better find their way, and keep it.

Weinschenk also mentions "flow"—a term I’ve always loved. To me, being in “flow” means that you are fully submerged in what you're reading. You could say that flow is the distracted reader’s kryptonite. You’ve been in a flow state, I’m sure. Like when you lose yourself in a book or movie, and then hours later you realize you have no sense of where the time went.   

Achieving flow is magic. If you can put your readers in that state as a legal writer (or even approach it), you'll be the most successful lawyer in practice (judges will read everything you write, and better yet, they will understand it and remember it). 

Weinschenk explains that part of keeping the flow running has to do with regularly triggering dopamine releases in the brain—which happens when readers are entertained, curious, or excited. This includes the good feelings that come with understanding new things (like, say, legal arguments?).

Keeping this constant feel-good state going requires so many things to work together just right.

  • Your writing must have zero distractions—a single weird word or stumbling sentence and the flow is gone, perhaps forever. 
  • Your writing must consistently engage throughout the document--not just at the start and the end, like many folks recommend.
  • Your writing must be engaging enough to draw the reader in. This takes strong style—snappy prose that engages your reader’s senses; and strong substance—careful attention to when and how the underlying content is metered out. If you don’t keep tickling your reader’s attention, they can’t keep their focus trained. And if you overwhelm them with too much substance too soon, they'll get lost.
  • Your writing must be orchestrated to perfection. As legal writing guru Steven Stark often says: the tough part of writing is organizing. Weinschenk has something to say on this point, urging writers to use “progressive disclosure.” This means not burdening your reader with too many specifics at one time, and ensuring that they have the big picture before moving to the small one. Legal writers often ignore this advice, diving into the details before fully laying out the aerial view.
  • Your writing must be crisp. Excess words or points that go nowhere will kill your reader’s flow. Stop when you’re done.
  • Your writing must tell a story—and one that your reader can be a part of. To make sense of the world, we turn just about all information into a story of some sort. And these stories have the same players and the same morals. We share fundamental notions of fairness, order, and empathy. Your writing can tap into these truths by focusing on people and events, subtly weaving emotional facts and vivid imagery into your prose, and becoming aware of devices like pacing and beat. The power of stories is so great, in fact, that a good one can cause readers to ignore contradicting facts or gaps. The brain wants to believe in a complete story, even if in reality, there isn’t one.

Weinschenk also mentions memory, which is a feature we legal writers don’t always consider. The best argument does little good if your reader forgets about it five minutes after reading it. Weinschenk recommends using repetition throughout your writing—what we legal writers would probably call road mapping. Weinschenk’s point, though, is that road mapping is not just about organizing, it’s also about reminding and reinforcing. There is some value to judiciously repeating key points and big picture ideas at regular intervals throughout your document. It helps your reader connect old information to new, makes it more likely that memories will stick, and prevents your reader from ever feeling like they are in unfamiliar territory.

As Weinschenk explains, the act of repeating information physically changes a reader’s neural pathways. The neurons can form a trace so that it’s easier to retrieve memories later. Use this science.

Finally, Weinschenk had a lot to say about the “illusion of plentiful choice.” The idea is that people don’t like being forced into a decision, while at the same time, they don’t want too much choice lest they become paralyzed. And if you give people at least the illusion of some choice, they will be more comfortable accepting your recommendation.

For legal writing, we can harness this insight by giving readers alternative paths to an outcome that is agreeable for us—but at the same time, keeping the alternatives to a manageable number. This means not bludgeoning your reader with the one “right” answer. Give your reader at least the illusion of choice by presenting the law and facts in a way that naturally leads them to pick the outcome you’d like.  

Joe Regalia teaches at Loyola University School of Law, Chicago and practices at the firm of Sidley Austin LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

https://lawprofessors.typepad.com/appellate_advocacy/2018/06/what-a-doctor-of-design-can-teach-you-about-legal-writing.html

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