Sunday, July 21, 2019
Bee to the blossom, moth to the flame; each to his passion; what's in a name?
-- Helen Hunt Jackson
Good writing is intrinsically connected to memory. The more memorable our writing, the easier it is to read. And the more enjoyable. Just think about when you read. If you get a few pages in and the author is talking about "the aforementioned case," and you can't remember what the heck that case is--you get frustrated. You have to flip back and figure out what the author is talking about. The experience is anything but smooth.
A profound truth thus reveals itself: The important things in your brief should be easy-to-remember. That way, when you return to those things later, your reader won't have to struggle to follow along.
But making all the important points memorable is tricky for us lawyers. We talk about a lot of convoluted, esoteric stuff. Not to mention the acronyms. Don't get me started on the acronyms!
What's the answer? Consider the power of names.
Naming things can be profound—it instantly makes them easy to remember. This is how ancient orators remembered impossibly-long speeches. They used words, and their associations, to name concepts and burn them into memory. So spend time coming up with memorable and pithy names for the important concepts, points, arguments, statutes, and yes, acronyms. Your readers will love you for it.
For example, take this lawyer who described his rule interpretation at length and then distilled it down into a nice little package for easy carrying throughout the brief:
The courts have thus created an ‘any touch is enough’ requirement for plaintiffs seeking emotional harm. Literally. A brush in a subway. [cite]. A tap. [cite]. A nudge with a foot in a crowded elevator. [cite.]
Now, later in the brief, when the lawyer uses the “any touch is enough” moniker, the reader will instantly remember all the great work the lawyer did in building that rule interpretation.
Another benefit of naming is that it’s an easy way to link ideas, paragraphs, or sections to connect different aspects of one cohesive idea. For example, in the first section of your brief, let’s say you talked about how if there is “no search, there’s no violation” a few times. In later sections of your brief, you should use that same nomenclature—that way your reader can connect the two sections and points.
You can name any important thing that you can think of. Just the act of naming it will help your readers trigger that thing's meanings. To get you started on your naming adventure, here are some common examples (followed by some thoughts about acronyms, because they warrant special attention).
First: Name the important stuff
A statutory provision. Repeating a statute’s numbers is horrible; who can remember that? Consider giving statutes a short name, especially if you use a specific provision a lot in your document, or you deal with multiple provisions frequently.
A factual concept. If you make the effort to explain a key fact, and it's complicated, give it a name:
A document or exhibit you cite to or rely on that’s important. We lawyers often repeatedly refer to a document or two in our briefs--why not pick a persuasive name for them?
Lots more. Any other concept, fact, principle, or idea that is complicated and would be easier to recall with an easy-to-remember name.
Second, use acronyms with care
Acronyms, let me just say, suck. They are a bunch of letters thrown together that your reader must somehow recall ten pages into your document. I’m not a fan, and the science isn’t either. This goes triple for a long or unfamiliar acronym. Yes, your reader can process CIA just fine. But not MSFGFDH (a real acronym from a federal brief!).
So instead, prefer parties’ names or familiar descriptors, not acronyms. Even just the simple act of referring to parties by words instead of a series of letters helps.
So, perhaps, instead of:
“The SLM Data Trust and Logistics Company, Inc (“hereafter referred to as “SLMDTLC”)
“The SLM Data Trust and Logistics Company, Inc (“Data Trust”).
Get on the naming train!
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.