Legal Writing Principle 7:
Craft beginnings that subtly influence how your readers see everything that comes after.
By Joe Regalia
Beginnings are everything in persuasion science. The beginning of your briefs will color everything else that comes after. Same goes for the beginning of your sections, your paragraphs—and even your sentences. Once your reader picks up your document they start making judgments about you. Some are explicit and some are implicit. And these initial ideas—these judgments about things like your credibility and competency—are nearly impossible to shake. The psychology literature is full of studies showing that even when faced with proof that we were wrong, we humans have a real problem changing our first impressions.
Some of the reason is that once we make initial judgments, we are constantly looking for evidence that we’re right about them. This is known as confirmation bias. So if your reader spots a poorly written sentence at the outset, their mind can’t help but look for more bad writing as they go. Also important is that those first sentences will spark emotions in your readers (either favorable or not). And studies suggest that sundry other biases (like our hatred of uncertainty, our reliance on imperfect information, and the effects of priming) all conspire to make the beginnings extra important.
Not surprisingly, the best legal writers know crafting strong beginnings takes extra care. Check out the below examples.
Let’s start with a Judge on the 11th Circuit. Below is the first paragraph of her opinion. Note how she takes your assumptions about what a “felony battery” is and blasts them out of the gate. Note also the fantastic style: A well-placed colon, followed by two short conjunctions—and a well-balanced trio of sentences with a medium, short, and longer one to finish. Finally, the judge incorporates her theme: Felony battery is a term of art that should be defined by legal analysis and precedent, not gut reactions to what seems “violent.”
No question about it: a crime called “felony battery” sure sounds like a violent crime. But sometimes intuition can be wrong. So we evaluate whether a crime qualifies as a crime of violence under the federal definition of that term of art by conducting legal analysis and applying Supreme Court precedent.
Here’s an opening sentence from Judge Wood on the Seventh Circuit in the Brendan Dassey case. This is easily the best sentence of her dissent. The theme is blaring: Dassey’s confession was a script provided by police. And the style is excellent. It’s also a great example of a long sentence done right. The phrases in between the punctuation are all well balanced and clear, with little room to get lost:
Psychological coercion, questions to which the police furnished the answers, and ghoulish games of “20 Questions,” in which Brendan Dassey guessed over and over again before he landed on the “correct” story (i.e., the one the police wanted), led to the “confession” that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts.
Or take this opening salvo from Judge Davis. Lots of pith and poignant examples to create a good first impression and get his key points across:
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them.
And to round things out, Circuit Judge Wilson. He makes his first impression here by leading off with some direct dialogue and a hypothetical that gets his readers thinking:
If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act? Most would say no. But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. Both a tap and a punch are capable of causing great bodily harm, but a tap involves a limited degree of force while a punch involves a substantial degree of force. Or, in the words of the Sentencing Guidelines, a punch involves “physical force.”
Other Tips to Start Smart
- Write with incredible pith at the outset. Top legal writers put their best material in the start.
- On the flipside: No typos, odd constructions, or simply poor word choice or dense sentences.
- Try to counteract biases or assumptions your reader has.
- Figure out how you can incorporate key themes, facts, rule statements—or whatever else is most persuasive from your document.
- Consider how you can put your reader in the right emotional state.
- Direct dialogue can be a helpful tool to connect with your reader on a deeper level, too.