How to Build Credibility in Your Legal Writing with the Three Personas

When I talk about legal writing, I like to stick to specifics. Like how to write punchy first sentences. Or tricks for catching typos while you're editing. Or how to spot words that you can cut to better focus on the content. 

Concrete tips like those are easy to try and easy to train. But there are some bigger writing ideas that are also worth talking about. And one of the most helpful, in my mind, is credibility. Because with the right sort of writing credibility, you can persuade even the most skeptical readers.

Let me say at the outset: Building credibility through your writing is harder than building credibility in person. In person, there are some easy tricks—posture, the tone of your voice, eye contact, a smile—that you can polish up in short order.

But when you write, there's a lot more to it. Your reader can't see you; they can't hear you. Everything about who you are must spring from the words on the page. Stated differently, you must build a written version of yourself from the feet up. And your written-self better be pretty freaking awesome.

As I write this, how do you see me? Have I convinced you that I'm someone you can trust? Perhaps a little. But do you trust me enough to put your reputation on the line? Say, to take my words, sign your name to them, and send them off to be published to the world?

Because that is what you're asking every time you write a document for a judge. If you hope to actually change a judge's mind and not just go through the motions (no pun intended!) you must convince that judge to trust your written-self like a close friend. Enough to risk reversal or embarrassment if they listen to your advice.

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. What details you choose to include; which you choose to leave out. Your tone. And certainly every typo. It will all be part of your written-self that gradually takes shape before your reader.

All these possibilities are daunting. But they're also empowering. Because it means that, while you can't completely change your in-person credibility (some of us just have that face); you can absolutely change your written-self credibility in exciting ways. Indeed, to be your best written self, I suggest you actually create multiple personalities—three to be exact. If you manage to embody each, your reader just might take your word for it (whatever that “it” is).

Consider adopting these three new selves: (1) the expert, (2) the confidant, and (3) the smartest person in the room. This is not too far afield from Aristotle's three forms of persuasion through emotion (showing your listener that you have good sense, good character, and good will). But this model has some modifications for us lawyers.

Each of these personas will reassure your reader, in various ways, that you are worth listening to. And ultimately, worth trusting

Your first persona is the expert. She knows how her client works, how the market works. She has been handling this particular species of case for years. She understands the practical ins and outs. She knows how these cases go on appeal. This persona will reassure judges that you've thought about the bigger picture and the repercussions—that your approach will make sense to the real world. 

It's about making the judge see you as an experienced professional who can be trusted to think beyond the cases. A person who truly represents her client's perspective. 

Look at how federal Judge Jennifer Dorsey uses her many years of former litigation experience to give off this air of expertise in a real estate case. She lays the groundwork for her expertise in this area, discussing the practical big-picture of Las Vegas's housing market and what lenders and investors have been doing in the real world. Also note the use of accessible industry terms, like "deed of trust," delivered without overwhelming jargon. And a tell-tale expert move, Judge Dorsey's familiar and vivid language suggests she is intimately familiar with these issues (the market “crash[ed],” referring to the“winners” and “losers”):

Try using the following six techniques to become the “expert” in your next case.

The next persona is about you as a person. It's about being honest and dependable. The type of person others turn to for important projects. The type of person who won't get caught up in their emotions or ego. Steady. A straight shooter.

Not only must you technically tell the truth—you must be honest about the spirit of the truth, too. The judge must never feel misled by you. When you say a case says something or the documents don't: the judge knows that's so. If you tell the judge your kid is sick and you need a continuance—the judge won't find out later that you don't have kids and were actually cosplaying at Comic Con. Hyperbole and stretching is not going to win cases for you. Stick to the facts and details and more subtle style moves.

Viacom used choice details instead of cheap characterizations to keep their credibility in the YouTube v. Viacom case. For example, Viacom wanted the YouTube founders to look like people out for a quick buck who didn't care about the consequences. Instead of saying that themselves and sounding argumentative, they quoted the founders themselves, who had stated in documents that their “dirty little secret . . . is that we actually just want to sell out quickly . . . concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics.” This is much better than trying to characterize the facts for yourself.

In one Pennsylvania case, the costs of laying it on too thick became all too clear to one attorney. Plaintiff's counsel exaggerated some of the key facts in his brief, and the court called him out on it: “counsel for claimant has seriously undermined his professional credibility.” In an Idaho Supreme Court opinion, a lawyer was called out for leaving out of his brief some bad facts for his client; the court noted that this “damage[d] both his credibility and his client's position.”

On the other hand, when attorneys are straight, judges notice. Like in a Massachusetts case, where one of the lawyers filed a notice letting the court know of new, binding authority that was unhelpful to his client's case. The court noted “such advocacy comports with the highest level of professionalism and deserves to be praised as exemplary ethical conduct.” You can bet that judge will trust anything that lawyer says in the future. Or take a Florida attorney who conceded a number of facts in an appellate brief—and reaped the rewards. The Florida appellate court stated in its final opinion that the attorney: “concentrate[d] on the important matters for our consideration and d[id] not have us counting dancing angels on small promontories. We recognize in his advocacy a lawyer on who we can usually rely to get it right and do it ethically.”

Finally, this persona is not just about your honesty, but your character as a whole. You work hard. You look out for the judge's well-being. You pay attention to the little things to make the judge's life easier—like appending copies of hard-to-find cases or footnoting some extra explanation for the judge to navigate your exhibits. Others jokingly say they are “officers of the court.” But you mean it. You must represent your client, but at the end of the day, the judge is also a client that you can't neglect.

Try using the techniques below to cultivate a reputation as the confidant in your next case.

Finally, you have to be the smart one. You have to be so smart, in fact, that the judge thinks of you like a teacher, walking her through the complexity like it's a breeze. You should have such a clever way of looking at the cases and issues that the judge wants to take your brief—turn it into an opinion—and look good by osmosis. And let's just be honest: we trust smart people. We think they must know what they're talking about. We resist disagreeing with them—after all, we see things just like they do (because we're smart, too!).

Pulling this persona off is about your raw writing chops, the time you spend understanding the law, and how deft you are at explaining complex concepts. Look at how one lawyer shows off his smarts with excellent writing skills in the following brief snippet. The writing is as clear and engaging as anything you'll read from a good journalist. He uses simple sentences, compelling structure that subtly emphasizes key points for the reader, vivid verbs, and excellent quoted dialogue. And it's all tackling some complex ideas:

Try using these techniques to become the smartest person in the room.