Appellate Advocacy Blog

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

Saturday, March 23, 2019

The strength of the start: How to Craft Killer Beginnings in Your Legal Writing

Starting-line

You never get a second chance to make a first impression.

-Andrew Grant

They say that the journey matters more than the destination--but I say it's neither. It's the beginning that matters most.

The beginning is everything. The beginning of your briefs will color everything else that comes after. Same goes for the beginning of your sections, your paragraphs--and even your sentences. 

Readers can't help but be swayed by the beginnings. It's science--indeed, one of the most studied phenomena. The moment that your reader picks up your document they start making judgments about you. Some are explicit and some are implicit. And these initial ideas--these judgments about things like your credibility and competency--are nearly impossible to shake. The psychology literature is full of studies showing that even when faced with proof that we were wrong, we humans have a real problem changing our first impressions. 

Some of the reason is that once we make initial judgments, we are constantly looking for evidence that we're right about them--also known as confirmation bias. So if your reader spots a poorly written sentence at the outset, their mind can't help but look for more bad writing as they go. Also important is that those first sentences will spark emotions in your readers (either favorable or not). And fascinating studies suggest that sundry other biases (like our hatred of uncertainty, our reliance on imperfect information, and the effects of priming) all conspire to make first impressions count more than they should. Indeed, in multiple studies, readers have distorted facts so that they would conform to their prior impressions. 

Mountains of research leave no doubt: We can exponentially increase the persuasiveness of our writing by making the right first impressions on our readers. So how do we do it?

Books could be written about crafting the right lead-ins for your briefs, sections, paragraphs, and sentences. I'm in the middle of some research on this topic right now, and I've read at least 100 studies on everything from affective theory to the uncertainty theorem to choice theory--all of which have something to say about why beginnings are so important. 

For now, I thought I'd share some examples of lawyers and judges who are masters of getting off on the right foot. As you read through, I think you'll agree that several best practices stand out: 

1. Write with incredible pith at the outset. Top legal writers put their best material in the start.  

2. On the flipside: bad writing is nowhere to be seen in the beginnings. That goes for typos, odd constructions, or simply poor word choice or dense sentences.  So no long acronyms, strings of cites or party names, or anything else that will bog things down. Leave that stuff for after you've made your impression. 

3. Counteract any biases or assumptions your reader has going into things. This helps put them in a better frame of mind when you get to the meat of your arguments. 

4. Figure out how you can incorporate key themes, facts, rule statements--or whatever else is most helpful to getting your reader to agree with your ultimate pitch. Often the best way to do this is to pluck memorable phrases or words from the body. 

5. Consider how you can put your reader in the right emotional state. If you want them outraged when they get to the details, prod them. If you want them thoughtful, subtly lead them there.

6. Direct dialogue can be a helpful tool to connect with your reader on a deeper level, too. As can all the other rhetorical and style tools that get your readers to listen carefully to the important stuff. 

Let's start with a Judge on the 11th Circuit. Below is the first paragraph of her opinion. Note how she takes your assumptions about what a "felony battery" is and blasts them out of the gate. Note also the fantastic style: a well-placed colon, followed by two short conjunctions--and a well-balanced trio of sentences with a medium, short, and longer one to finish. Finally, the judge incorporates her theme: this is a term of art that should be defined by legal analysis and precedent, not gut reactions to what seems "violent." 

No question about it: a crime called “felony battery” sure sounds like a violent crime. But sometimes intuition can be wrong. So we evaluate whether a crime qualifies as a crime of violence under the federal definition of that term of art by conducting legal analysis and applying Supreme Court precedent.

Here's an opening sentence from Judge Wood on the Seventh Circuit in the Brendan Dassey case. This is easily the best sentence of her dissent. The theme is blaring: this confession was a script provided by police. And the style is excellent. It's also a great example of a long sentence done right. The phrases in between the punctuation are all well balanced and clear, with little room to get lost: 

Psychological coercion, questions to which the police furnished the answers, and ghoulish games of "20 Questions," in which Brendan Dassey guessed over and over again before he landed on the "correct" story (i.e., the one the police wanted), led to the "confession" that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts.

Moving to the paragraph level in that same case, Judge Wood continues paying close attention to her first sentences. She persuasively frames what comes after by juxtaposing what the court of appeals should have done with what they did do: 

If the Wisconsin Court of Appeals had done what it should have, it could not reasonably have concluded that Dassey's confession was either voluntary or reliable (both of which are required for the use of a confession to be consistent with due process). 

And another great first sentence, this time a not-so-subtle effort to color how readers will review a set of facts: 

Just as importantly, a closer examination of the supposedly reliable facts on which the majority relies shows that they are no such thing.

And finally, Judge Wood leads into a final section with a sentence that leverages the persuasive power of the judges that agreed with her position, as well as a reference to the particular rule of law that supports her view: 

As the district court and the panel majority recognized, we have before us just such an extreme malfunction. 

Here's an opening salvo in another federal appellate dissent. Again, so much of the persuasive theme is packed into two sentences. Even the key language that forms the crux of the disagreement. The reader could stop there and get the point. Another great move, not necessarily about first sentences--the author gives the majority's argument a name, the "capacity test." Naming things is a powerful tool--either to frame an opposing argument persuasively or to give your a reader a memorable slogan for your own pitch: 

The Majority derives its capacity test from a single sentence in Curtis Johnson: “[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” To the Majority, the word “capable” in that sentence is dispositive, establishing a capacity-based definition of “physical force.”

Here's another great opening sentence, this time for a section, which offers specific, tactile examples of a concept: 

Touching, tapping, pinching, and other actions involving limited, non-violent contact do not constitute “physical force.” But kicking, striking, punching, and other actions that are associated with violence do constitute “physical force.”

Take this opening line from Judge Davis in a concurrence. Lots of pith and poignant examples to drive his persuasive pitch home: 

Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals-Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few-who refused to accept quietly the injustices that were perpetuated against them.

This is another great opener from a dissent. Leading with the key persuasive fact--the absurdity of the numbers--puts readers in the right emotional state--skeptical. 

In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference. In some legal precincts that sort of behavior is called theft. 

Judge Ed Carnes us a great purveyor of first sentences. Here's a stylistic intro that uses a rhetorical flourish: "verbal sleight of hand": 

First, we think it unlikely that the Supreme Court would engage in the verbal sleight of hand that Vail-Bailon attributes to it. 

Later in that same opinion, Judge Carnes sums up with a pair of emdashes the critical distinguishing facts in the critical authority: 

The Court’s concern in Leocal—that the DUI crime at issue did not require the intentional use of any force at all, and that a defendant might be convicted of it after engaging in accidental or at most negligent conduct—is not a concern here.

Perhaps no one is a better first-sentencer than Justive Kagan. Look how simply the Justice sets up--what she thinks--is the key question. This move, anchoring the analysis at the start by controlling the governing question, heavily controls how readers will see the analysis after. Justice Kagan also explains the concept twice in different words, ensuring that her key point is driven home:  

In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.

Justice Kagan keeps hitting at the beginnings. Here's an initial paragraph that sets the stage for a section by clearing away the chaff. You'll also see especially excellent style (hallmark-Kagan dialogue with the reader, parallelism in her questions, and great sentence-length balance): 

It is an oddity of this case that both sides agree with just about everything said in the last six paragraphs about the pertinent law. Do legal fees awarded under a court’s inherent sanctioning authority have to be compensatory rather than punitive when civil litigation procedures are used? The Haegers and Goodyear alike say yes. Does that mean the fees awarded must be causally related to the sanctioned party’s misconduct? A joint yes on that too. More specifically, does the appropriate causal test limit the fees, a la Fox, to those that would not have been incurred but for the bad faith? No argument there either. And in an exceptional case, such as Chambers, could that test produce an award extending as far as all of the wronged party’s legal fees? Once again, agreement (if with differing degrees of enthusiasm). All the parties really argue about here is what that law means for this case. 

Justice Kagan also knows how important it is to not bog down her first sentences with a lot of needless details. Like here, where she foregoes listing out all the defendants (but still includes the plaintiffs--all sympathetic family members who she keeps in for good reason): 

Respondents Leroy, Donna, Barry, and Suzanne Haeger sued the Goodyear Tire & Rubber Company (among other defendants) after the family’s motorhome swerved off the road and flipped over.

First Circuit Judge Barron shows off his first-impression chops in the famous comma-case. Style and all the key details to put the reader in the right frame of mind:  

For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.

In one of my favorite judicial opinions of late, Judge Thompson crafts an excellent first impression here by using some rhetorical moves and fresh transitions to deliver his key theme: 

This is the third and final installment in a trilogy of published decisions in the direct appeal from a judgment of conviction entered against the defendant, Mark J. Zimny. In the opener, we remanded for the district court to conduct an investigation into a colorable allegation of juror misconduct. In the sequel, we addressed Zimny's request for bail pending appeal. Now, in the finale, we tackle Zimny's new claim that the district court erred in conducting its juror-misconduct investigation, as well as the two remaining issues upon which we reserved judgment in Zimny I. 

Later, Judge Thompson uses a quote from the losing party to trounce their position: 

But, contrary to Zimny's insistence, the purpose of the remand was not “to investigate the potential that the jurors' memories may have faded in the interim since trial.” Rather, the purpose of the remand was to determine whether the juror misconduct alleged in the additional-juror comment actually occurred.

And who could forget Judge Willett? This is one of my favorite first impressions of all time. After reading these opening paragraphs, it's hard not to be persuaded by whatever comes after. The style is impeccable (check out his choice verbs, for one thing). The framing is fantastic ("the text is king"). Multiple rhetorical flourishes convince his readers that he's worth listening (among other things, two sets of echo phrases). And he never takes it too far: 

The lion’s share of modern appellate judging is reading legislative language and decoding what it means. On that score, our interpretive precedent favors bright lines and sharp corners. If a case can be decided according to the statute itself, it must be decided according to the statute itself. This is a bedrock principle.

Today’s case asks whether a notice provision in the Texas Premium Finance Act should be read as written, or instead whether the Court should adopt a “substantial compliance” approach that excuses slip-ups. We opt for the former. The Legislature has codified “substantial compliance” throughout Texas law—including in other Insurance Code notice provisions—forgiving less-than strict conformity with various statutory commands. But it did not do so here. We decline to engraft what lawmakers declined to enact.

And to round things out, Circuit Judge Wilson. He makes his first impression here by leading off with some direct dialogue and a hypothetical that gets his readers thinking: 

If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act? Most would say no. But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. Both a tap and a punch are capable of causing great bodily harm, but a tap involves a limited degree of force while a npunch involves a substantial degree of force. Or, in the words of the Sentencing Guidelines, a punch involves “physical force.” 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here

https://lawprofessors.typepad.com/appellate_advocacy/2019/03/the-strength-of-the-start-why-beginnings-matter.html

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Comments

your posts are always apt, concise and educating.

Posted by: chibuzor Michael | Mar 28, 2019 7:21:15 AM

apt and education

Posted by: chibuzor Michael | Mar 28, 2019 7:47:09 AM

apt and educating

Posted by: chibuzor Michael | Mar 28, 2019 7:47:51 AM

apt and educating

Posted by: chibuzor Michael | Mar 28, 2019 7:48:23 AM

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