Chapter Three
Writing with Flair
If you want to add flair to persuasive writing, first analyze audience, context, and tone.
Then consider the most effective technique. Metaphor, strong language, wordplay,
literary and historical references, and repetition can make legal writing distinctive. But
use these techniques sparingly. Too much flair can weaken the power of each example.
Experiment in early drafts to develop a keen judgment on these techniques.
3.1 Metaphorical Language
3.1.1
Metaphors
An effective image strengthens an argument by creating a vivid picture in the reader’s
mind. When you choose a figure of speech, select a fresh, original metaphor, not a cliché.
Use metaphors that add persuasive power to your argument.
Because they appear so frequently in legal writing, the underlined examples below have
lost their impact:
1.
Movants apparently are quite unaware that the wheels of justice grind
slowly when form is allowed to take precedence over substance.
2.
The fatal flaw in Kelly’s brief is that it contains factual assertions not
found in the pleadings before the court.
Avoid metaphors that appear frequently in general usage as well. Certain figures of
speech weaken a legal argument:
3.
The present cases are part of plaintiff’s attempt to avoid having to reap
the consequences of its own sharp practices.
4.
How ironic it is that the needles of justice can be buried in so huge a
haystack.
Fresh and original figurative language will attract readers’ attention:
5.
Florida has a well-developed body of voluntary payment law. Mr. Young
and Ms. Astor, however, apparently cannot find a Florida case to support
their argument; they rely instead on a Michigan case. Even that Michigan
case predates the twentieth century; it comes from an era when trolleys,
not television, traveled on cables.
6.
The fear of losing cable service cannot constitute legal “compulsion” or
“coercion.” With all due respect to both client and country, it is
inconceivable—even in America today—that threatening to cut off cable
television service constitutes duress. MTV and ESPN are not inalienable
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Legal Writing: Form and Function
rights. Losing Nickelodeon and the Cartoon Network is not like losing
electricity in the winter. Being condemned to watch broadcast television
(or to listen to a radio or read a book) is not the same as being condemned
to the abyss.
7.
Hattori and its American subsidiaries do maintain some independence—
about as much as the egg and vegetables in a western omelette. Just as
from a culinary point of view we focus on the ultimate omelette and not its
ingredients, from a jurisdictional standpoint the effect of the integrated
international operation of Hattori activities in New York is our primary
concern.
Exercise
Identify clichés in these sentences.
A. Six potential problems mine the trail for our client.
B.
Palmer’s rising profits were spawned by the fact that Power Words, Inc.
conducted the advertising campaign.
C.
Although an eye was kept on the law in other jurisdictions, nothing
appeared on forced conversions. Perhaps a second look in Ohio and other
jurisdictions for provisions of that nature would be helpful.
D. Bankco should pull in the reins on Automax’s short-term credit line.
Answers
A. “Mine the trail” is an overworked war image. Use literal language.
Revision: Our client faces six potential problems.
B.
The phrase “is spawned” is a cliché originating in the reproductive patterns
of fish. The writer has applied the metaphor awkwardly to an increase in
sales. Use literal language and the active voice.
Revision: Power Words, Inc.’s advertising campaign led to Palmer’s rising
profits.
C.
Ocular imagery, “an eye was kept on the law” and “a second look,”
represents legal research. Convert these clichés to literal language.
Revision: Although I reviewed the law in other jurisdictions, I found
nothing on forced conversions. Perhaps a careful search in Ohio and other
jurisdictions for provisions of that nature would be helpful.
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Jane N. Richmond, Ph.D.
D. The cliché “pull in the reins” depicts Bankco officials as riders and
Automax as a horse. The diction is not appropriate for a formal context.
Revision: Bankco should tighten Automax’s short-term credit line.
The verb “tighten,” with “credit line” as object, is a metaphor. This
expression is an accepted financial term, not a cliché. To avoid a metaphor,
use “limit” and delete “line.”
Revision: Bankco should limit Automax’s short-term credit.
3.1.2
Choosing between Two Drafts
Reasonable persons often disagree about the effectiveness of a specific metaphor in a
brief. “Writing by committee” can lead to heated debates about whether to include figures
of speech. At times, committee members must choose between two drafts: one with
dramatic imagery and one with literal language.
A committee of attorneys drafted two paragraphs for the introduction in a memorandum
in support of application for a preliminary injunction. At first, the lawyers could not agree
on a final version. Contrast the two paragraphs below:
1(a) Accordingly, when Trax-Co and Ace Oil are viewed in the context of their
industry with its unique composition and characteristics, the cases cited
and the facts illustrated above point inexorably in the direction of
illegality and the need for a preliminary injunction. The court could
properly base a finding of illegality on those cases and facts alone.
Yet . . . .
1(b)
Accordingly, when the economists have stopped expounding theories, the
lawyers have quit making distinctions, and the courtroom is still, the cases
cited and the facts illustrated above will continue to point inexorably in
the direction of illegality and a preliminary injunction. This court could
appropriately and correctly go no further. Yet . . . .
As you review the paragraphs again, consider these questions:
1.
Which version is stronger?
2.
What techniques make each draft persuasive?
3.
Would you employ the same techniques in your writing?
4.
Which version do you believe the committee chose?
While the tone of paragraph 1(a) is logical, paragraph 1(b) is more dramatic and
emotional. The initial contrast occurs in the “when” clauses:
1(a) Accordingly, when Trax-Co and Ace Oil are viewed in the context of their
industry with its unique composition and characteristics . . . .
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Legal Writing: Form and Function
1(b)
Accordingly, when the economists have stopped expounding theories, the
lawyers have quit making distinctions, and the courtroom is still . . . .
In version 1(a), the writer describes a corporate context that will serve as a backdrop for
the desired outcome. The second draft, however, opens with a dramatic image: a
courtroom quiet after the intellectual efforts of the economists and lawyers are over. The
writer makes the economists and attorneys sound dispensable, because the law and facts
point to only one result. The longer verb phrase, “will continue to point inexorably,”
extends the image’s power.
The drafts differ also in the second sentence’s content and tone. The first paragraph
continues the earlier intellectual argument. The writer points out the logically
predetermined outcome: “The court could properly base a finding of illegality on those
cases and facts alone.” Yet in the second, more concise version, the writer makes a strong
value judgment: “This court could appropriately and correctly go no further.” The
adverbs “appropriately” and “correctly” reinforce the earlier courtroom image, and
establish that the evidence and law show only one possible outcome.
The committee members chose paragraph 1(a) for the final version of the memorandum.
Do you agree with their decision?
3.1.3
Mixed Metaphors
Do not mix metaphors. Within each sentence, use consistent figurative language, i.e.,
metaphors that sustain the same image. Otherwise, their juxtaposition may be jarring or
even ludicrous.
A litigator mixed metaphors in the sentence below:
Although this argument may go too far, it has some weight for debtors
who are going under.
The writer begins with an implied comparison of the statement to a measure of distance
in the phrase “may go too far.” Next, the figurative phrase “has some weight” suggests
the image of Justice with her scales. Finally, the lawyer compares the debtors to
drowning persons who are “going under.”
Together these metaphors create an impossible image. To revise the sentence, first
convert the figures of speech to literal language:
Literal Language
Metaphor
may go too far
be extreme
has some weight
is relevant
going under
unable to pay
If you retain only one figure of speech, you can maintain the intended tone without
mixing metaphors.
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