Thursday, August 4, 2022
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: The Writing Tactic of Restatement
In May, I wrote the post, Putting the Audience First: A Perspective on Legal Writing. In that post, I encouraged readers to adopt a perspective on legal writing that always—always—has at its core the goal of meeting the needs of the actual, imagined, and implied audiences of the document. (If you haven’t yet read that post, I think it’s worth your time to read it before reading this one.) In that post, I promised that June’s post would be about the tactics of an audience-first perspective. Well, June turned out to be terribly unkind to my family; we had a family member with a serious, hospital-stay-causing (but temporary) illness. So, with apologies, here’s the post I promised for June.
Audience-First Perspective, Effective Writing Choices
In May I wrote that a good legal writer imagines the audience and writes for that audience, anticipating needs and meeting them. An even better legal writer recognizes that documents also imply an audience; that is, how the document is written suggests an audience for that document. As such, the work of the writer is not just to anticipate the needs of an audience but to also create needs the writer wants the audience to have and then use the document to satisfy those needs. Ultimately, writers that meet audience needs are more likely to influence those audiences. Accordingly, I suggested that the legal writer’s prime directive is this:
In a deliberate way and in every writing choice, put the audience first.
This directive to put the audience first should lead the writer to identify and deploy writing tactics—the tools in the writer’s toolbox—that best satisfy audience needs. One tactic that cuts across different types of documents and purposes for writing is the rhetorical tool of restatement.
Restatement as a Tactic of Audience-First Writing
Restatement as a writing tactic is a way of calling attention to a concept, point, or idea by stating that information in a different form, one that is often more convincing, clear, or both. Restatement is a powerful rhetorical tactic for satisfying the needs of audiences because restatement can
- Emphasize important ideas;
- Enable the audience to more easily remember important ideas;
- Clarify concepts that might be confusing to the audience; and
- Add a gloss on concepts or ideas that convey emotion or theme to the audience.
Signposts should accompany restatements. Good signposts for restated information include
- In other words
- That is
- Stated another way.
Each of these phrases put the audience on notice that what follows is the restatement of the same idea in a new way. (In general, it’s almost always true that you should put your reader on notice of your next writing move. That’s why transitions are so important to understandable writing.)
Examples of Restatement from Appellate Briefs
Here's an example of restatement in an amicus brief in Axon Enterprise, Inc. v Federal Trade Commission. The question in this case is whether the federal district courts have jurisdiction to hear constitutional challenges to the FTC’s “structure, procedures, and existence.” Pay particular attention to what happens in the second sentence below:
Thus, “if one part” of government “should, at any time, usurp more power than the constitution gives, or make an improper use of its constitutional power, one or both of the other parts may correct the abuse, or may check the usurpation.” Id. at 707–08. Each branch, in other words, must ensure that the others stay in their constitutional lanes.
This excerpt is a good example for seeing how restatement can be an audience-centered rhetorical tool. The brief apparently uses restatement because the quoted language in the first sentence is somewhat complicated. This complication is in part because the quote is from 1791 and because the quote is addressing how the branches of government operate under the U.S. Constitution. In some situations, writers would want to avoid a quote like this and paraphrase the ideas within the quote. The paraphrase is a “shortcut” for getting to the essential meaning the writer wants to convey when the original language is complex.
So, why would a brief include a complicated quote? One explanation is that a writer might think a quote is persuasive because quote’s author is meaningful to the brief’s readers. That might explain the quote in this brief. Here, the quote is from James Wilson’s 1791 lectures on law at the College of Philadelphia. Wilson had participated in drafting the Constitution and had served as a United States Supreme Court Justice. His lectures addressed the U.S. Constitution and the way in which the federal government described within it operated. So, by including Wilson’s quote, the brief appeals to Wilson’s exact words as well as his ethos.
The brief keeps the original ideas in Wilson’s mouth, so to speak. But by retaining the more complicated quote, the brief also creates a need in the audience to have clarity on what the quote means. In this brief, clarity is accomplished with a short, punchy sentence that conveys the key point in a more emphatic and more memorable way and puts a gloss on the quoted language’s meaning:
Each branch, in other words, must ensure that the others stay in their constitutional lanes.
By using the phrase “in other words,” the brief signals to the reader that the sentence is a restatement. Then the sentence restates Wilson’s quote in a more accessible way, by modifying a commonly used phrase, “stay in your lane,” to sum up what the quoted language directs the branches to do. This restatement reduces complexity and it gives a reader a way to more easily remember the overarching concept about the roles of the separate branches.
There’s also an emotional valence to the restatement—this is the gloss. The metaphor of staying in one’s lane gives a modern vibe to an old idea. Merriam-Webster says that “to stay in your own lane” “comes from football . . . where [it] is viewed as advice to worry about your own assignment and not take on the job of defending a different opponent, which can lead to blown coverages and chaos.” In addition, the phrase can mean to stick to your own area of expertise or to maintain your car in a particular lane of the highway.
Even if a reader doesn’t know these exact meanings, a reader is likely to feel the sense of orderliness and security that comes from staying in one’s own lane and getting the job done. This feeling, perhaps, is the feeling the brief is hoping for in its audience—that it is good for each branch to ensure that the others stay within the confines of their own expertise. As such, the restatement provides less complex and more memorable language that has an emotional “feel.”
Beyond satisfying the need of court audiences to easily grasp the content of briefs, restatement can be effective for speaking to other brief audiences. Imagine the news headline that emphasizes the restatement: Case asks whether branches must help others “stay in constitutional lanes.” In other words, a simplified restatement could meet the needs of audiences to express a complicated legal idea in everyday language.
Here’s another example that presents a similar pattern of restatement. This one is from the of the Brief for Petitioner in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Again, pay attention to the end of the paragraph.
Copyright ultimately rests on a “pragmatic,” utilitarian bargain: “[S]ociety confers monopoly exploitation benefits for a limited duration on authors and artists” to incentivize and promote “the intellectual and practical enrichment that results from such creative endeavors.” Leval 1109; see also Google, 141 S. Ct. at 1195 (noting that copyrights are granted “not as a special reward” to creators, but rather “to encourage the production of works that others might reproduce more cheaply”); Harper & Row Publishers, Inc. v. Nation Enters. 471 U.S. 539, 545 (1985) (copyright protection is “intended to increase and not to impede the harvest of knowledge”); supra at 4. In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.
The Warhol case presents a question under copyright law’s fair use doctrine: whether Andy Warhol sufficiently “transformed” another person’s photographs when he used those photographs in his own artworks. In the paragraph above, The Warhol Foundation’s brief makes an argument that copyright is not so much about the protection of artists and authors but about giving society the benefits of its citizens’ creative work. The brief faces a bit of a challenge with this point; true, the precedents say that society is meant to benefit from copyright, but the precedents also say that creators are meant to benefit, too. In other words, the first two sentences of the paragraph point in two directions at once, which makes it less clear what point the reader is to take away from that information. But the brief does not allow that confusion to persist. By invoking the “marketplace of ideas” metaphor, the brief emphatically guides the audience to focus in one direction, on society’s benefit:
In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.
Is there anything special about the “marketplace of ideas” as an element of restatement here? Generally speaking, the marketplace of ideas is a powerful metaphor in American culture. As Schultz and Hudson note, the phrase is “perhaps the most pervasive metaphor to justify broad protections for free speech” and was invoked most recognizably in Justice Holmes’ dissent in the First Amendment case of Abrams v. United States in 1911. A quick Google search shows that the metaphor also has broad, popular appeal as a shorthand for describing prevailing values about how ideas should circulate in public discourse. For better or worse, the marketplace of ideas evokes a set of commitments and emotions that influence how readers might think about Warhol’s use of another photographer’s work.
Because of the strong pull of the “marketplace of ideas” metaphor, this brief provides a useful example of how a restatement has potential to create a need for a brief’s audience. Here, I think, the use of the marketplace of ideas metaphor implies an audience that needs to see how arguments about fair use and copyright relate to the marketplace of ideas concept. In other words, the marketplace of ideas may not have been on the audience’s mind until the brief suggested to the audience that the marketplace of ideas is relevant here. The use of the metaphor in restatement cements that connection and sets up the opportunity for the brief to meet that implied audience’s needs.
Restatement as a rhetorical tactic can help writers craft documents that are clearer and more understandable for audiences. Writers can direct readers to what ideas are most important and distill for audiences the essence and emotional valence of complicated concepts.
What do you think about restatement?
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 did this summer, she presented a CLE on Modern Legal Writing at the South Dakota Bar Annual Conference. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected].