Legal Writing Principle 8:
Know Thy Audience
Write with a tone that makes you likable and cuts through skepticism and bias.
By Joe Regalia
You may be surprised to learn that some of persuading readers—even legal ones—comes down to charisma. If your readers like you (and better yet, believe you) they are more likely to agree with you. Simple as that.
This is why the tone—the way your readers hear your writing—is so pivotal. How you sound has much to do with whether your readers will see you as smart, reasonable, nice, honest, and most importantly, worth listening to. Sculpting your written-self is as much an art as sculpting clay. Every word, every sentence, and every paragraph will influence the version of you that steps off the page.
How do you strike the right written tone? It turns out to be pretty similar to striking the right verbal one. Below we’ll explore several tools you can use to master this principle.
Avoid Over-the-Top, Dramatic Language
Use language that presents yourself as reasonable, thoughtful, and confident; avoid language that makes you sound elitist, whiny, or pushy.
Don’t just take my word for it. Research shows that using over-the-top language that forces your position on the reader backfires every time. In one study, using this language reduces your chances of success by a staggering 20%.
Take this example. Would you want to agree with this lawyer?
The defendant is nothing more than a weasel. He sniffed around for evidence to fire plaintiff, then when he couldn’t find any, slinked away to find another victim. The defendant’s deplorable conduct deserves swift and entire justice.
The easiest way to avoid an unlikeable tone? Simply cut down your use of lazy descriptors. We often insert adverbs and adjectives into our sentences in an attempt to manhandle our reader into feeling a certain way about a fact or argument. For example:
This was a heinous and viscous attack that caused severe and permanent injuries to plaintiff.
Instead, use choice details and subtle prose to focus your reader’s attention where the emotional response will build naturally:
The defendant used an aluminum baseball bat to beat plaintiff until his knee caved in.
Don’t Name Call or Make Petty Characterizations
Another move to reduce obnoxious language and increase your credibility: Avoid any sort of name calling and petty characterizations—whether it be about parties, attorneys, or anything else. You should state the facts about what a party or attorney has done. But as soon as you start characterizing or name calling, your credibility disappears. You implicate yourself in the drama.
Use Themes, But Ground Them in the Law
A less obvious tip is to carefully craft your document and themes to have an emotional flavor, but also a concrete grounding in the law. If your theme stems entirely from emotion, it may backfire on you. So perhaps instead of a theme painting a plaintiff as a “bad actor,” you opt for a theme about how acts like the plaintiff’s are precisely what Congress meant to regulate in passing the relevant statute.
Remove Yourself from the Equation
Next, try to remove yourself from the equation as much as possible. There is rarely a reason to write in the first person—or to make a point based on your “belief” or “position.” If you are obviously characterizing something using your personal opinion, you are risking a backfire reaction from your reader. Make your arguments all about what the facts say or what the authority says or what the reasonable interpretation says.
Our position is that this discovery is too burdensome to be permitted.
This discovery will burden defendant with an estimated $2 million in costs, which is not warranted under the Federal Rules for X and Y reasons.
Mimic Your Reader’s Writing Habits and Preferences
If you really want to strike the right chord, consider researching your audience’s writing tendencies and matching them. Unsurprisingly, readers really like language that sounds like they wrote it. By matching tendencies like sentence length, organization, font, and other style, we can connect with the reader in the way their mind likes.
Other Tools to Know Thy Audience
Concede when you have losing arguments; admit when issues are tough.
Carelessness will kill your credibility.
Always think of ways to help the reader find information and track down references or cross-references.
Cut amplifiers like “clearly, obviously, very clear” and the like.
Generalities and conclusory statements insult your reader’s intelligence.
Blanket generalizations that you can't back up just highlight your weaknesses.
Never ignore the bad in the law or facts. Nothing makes you look shadier.
Spend enough time editing your prose that your writing has a luster. It must be crisp, fluid, and engaging.
Spend enough time wrestling with the law and authority until you are able to explain how it works to a lay person—like a journalist must.