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Thursday, May 5, 2022

Putting the Audience First: A Perspective on Legal Writing

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Putting the Audience First:  A Perspective on Legal Writing

A few weeks ago, I was invited to give a short dinner talk about legal writing to a group of federal district court staff attorneys and judges.  The talk was entitled “Audience-First Legal Writing.”  This month’s post is based on that talk.

Legal writing is always and almost exclusively at its best when it is audience-centered. That is, the best legal writers know that they can be most effective when their documents meet the audience’s needs.  Accordingly, the best legal writers write legal documents not for themselves but for the audience.  And the consequence of that commitment to audience is the knowledge that every rhetorical move and every writing choice contributes to the audience’s view on whether the writing is “good.”   

What an audience thinks is “good” legal writing changes with the purpose of and context for the document.  Much of the time, a writer can’t know with certainty what an audience will deem “good.”   Of course, the better the writer knows the specific audience, the more likely the writer can be successfully audience-centered.  But, even without this knowledge, legal writers can anticipate some common needs that audiences might have of a document.  Is the document understandable?  Accurate? A quick read?  Logically sound? Interesting?  Well organized?  Engaging?  Convincing?  In other words, writers are not without resources when it comes to anticipating and writing for audiences in ways that satisfy their needs.  But, without prioritizing an audience-centered view of writing, none of those resources can be brought to bear in a writing project.

As such, I’ll suggest that the legal writer’s prime directive is this: 

In a deliberate way and in every writing choice, put the audience first.

“Audience-First” Is a Perspective on How to Write

I notice that legal writing instruction—particularly in the context of continuing legal education—is often directed to the tactics that one can use to make their legal writing better. For example, “prefer active voice,” is a tactic of good legal writing.   Nothing is wrong with learning good legal writing tactics.  But those tactics aren’t all that useful without a perspective on or a strategy for deploying them.   

An audience-first approach to legal writing that perspective or strategy.  An audience-first orientation toward the writing project can guide how one chooses which tactics to use to write a document.  In other words, having an audience-first approach to writing is way of being and seeing as a writer that will lead to effective writing choices.

Actual, Imagined, and Implied Audiences

The first goal of an audience-first legal writer is first understand the audiences to which one writes.  To start, a writer wants to get to know the actual audience of a document as well as one possibly can.  For example, if a writer knows the particular preferences or desires of the actual audience, that knowledge can play a big role in meeting those needs.  

But it’s tough to always know (and know well) the actual audience of a legal document.  In fact, I’d argue, that there is no one, “actual” audience for a legal document; audiences in legal writing are typically multiple.  For example, an appellate brief might find audiences in clients, opposing counsel, supervisors, clerks, judges, the press, and a host of legally interested internet surfers.  Moreover, even within an actual audience, like judicial clerks, for example, a writer may be unable to know the specific expectations, preferences, and needs of those readers. 

But lacking information about the actual audience does not leave a legal writer without options.  This is because a writer’s audience is not just the audience the writer can identify with specificity, but it is also the audience that the writer can imagine, based upon their educated guesses about that  audience.  Key to the imagined audience is that it is a composite audience, an idealized example of the people who will be reading the document.  Unlike the actual audience, the imagined audience represents a group of anticipated readers in terms of their collective goals and characteristics.  So, an audience-first approach means to imagining this idealized example and then writing for it.

Finally, an audience-first approach means being attentive to the audience that is implied in a document. That is to say, audiences are not only actual or imagined, but they are also the ones that the document itself brings into being. Think of it this way:  Actual and imagined audiences exist even if a text didn’t.  Implied audiences exist only because the text does.   

Unpacking the Implied Audience: Everything You Need to Plan the Most Epic Prom Ever

 An implied audience is one that is constructed by the document itself and can be inferred from analyzing that document. Writers imply an audience in a document based on how they decide to organize the text and describe the concepts within it.  In other words, when writers make choices about the writing, one can see in the document who the writer wants the audience to be. 

The idea of the implied audience can be seen as a perspective on persuasion that gives a legal writer tremendous power over a reader’s reception of the document.  Writing a document to not only address but also imply a particular audience results in content that can both create needs in the audience and then satisfies them.  In other words, implying an audience in a text can motivate a reader to become an audience with a need (perhaps one that the reader didn’t even know they had) that the document can satisfy.

I’ll use a nonlegal example of how implied audience works in a text to help simplify the analysis.

In March, Seventeen magazine published this headline on the front page of its website:  “Everything You Need to Plan the Most Epic Prom Ever.

There’s a good bit of implied audience at work in this sentence. 

First, the sentence implies an audience that is—or should be—interested in having a great prom experience.  This sentence not only attracts the attention of an audience already looking for information about a great prom, the sentence also constructs a prom-interested audience; it tells readers to be an audience with an interest in prom. In other words, the words of the sentence create an audience with certain needs; in fact, the sentence is not even subtle about this—it specifically says that “you” have a “need”!

Second, the sentence tells the audience that the website has what the audience needs; it has, as the title says, “everything.”  Keep reading, implied audience, to meet your (constructed-in-the-text) need for everything! 

Third, the title implies an audience who is willing to work at accomplishing this epic prom.  In other words, the text implies an active audience—one who will “plan” everything necessary to ensure this experience is fantastic.  By creating for the audience a need for action steps, the text sets up a particular relationship with that audience—one where the audience prepares to do something with the information they’ve learned.

Finally, the title artfully uses the word “epic.”  The word “epic” implies an audience of a certain generation—one that would use the word “epic”—and with certain expectations—very high ones.  The tone of the sentence might even suggest that the implied audience has a fear of missing out on all of prom’s “epic” possibilities.  This fear might motivate action--I, too, want the most epic prom ever—what do I need to do? At the very least, the sentence suggests, look at the website (and perhaps all of the advertisements?) for everything you need!

So, what should a legal writer, taking an audience-first approach, conclude about the implied audience from this analysis of Seventeen magazine’s website headline?  This sentence invites into being an audience that is probably in high school, is interested in prom, is expecting prom to be an amazing experience, is willing to plan, and is looking for exhaustive information on what to do.  This audience, and all its characteristics, is implied in the sentence; the sentence creates an audience who has needs, invites the reader to be in that audience, and implicitly promises that those needs will be met in the text that follows. 

As legal writers, we might ask ourselves—if one sentence can do that much work implying an audience and creating and satisfying its needs, what could we accomplish with all the sentences of a legal document?

A Recap and Some Questions

So, as a reminder, this post suggests that the best way to approach legal writing is to take an audience-first approach.  First, write to the audiences you know as well as the audiences you can imagine. You can do this by asking a few questions at the beginning of your writing process, the answers to which will guide your writing choices:

  • What are the characteristics of the actual audience that will be reading your document? What will they need?
  • Equally important, who is your imagined audience? What will the idealized reader need from the document?

Second, write with a conscious awareness of the audiences that your documents imply. Implying an audience gives you the power to be more persuasive by motivating readers to become audiences with needs you can satisfy through your writing choices.  To become more aware of the implied audience in your writing, ask

  • What needs do you want the audience to have that can be met by the document?

Next Month:  Connecting Writing Tactics to the Audience-First Legal Writing Strategy

An audience-first perspective on legal writing can give a legal writer a useful strategy for writing effective documents that can appeal to and meet the needs of audiences.  The next step is to connect the audience-first strategy to the writing tools that writers already have in their tool boxes.  These tools are the tactics that the writer will use to satisfy the needs of the audience.  In next month’s post, I’ll connect some writing tactics to the audience-first approach.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

https://lawprofessors.typepad.com/appellate_advocacy/2022/05/putting-the-audience-first-a-perspective-on-legal-writing.html

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