Legal Analysis

Triggering Emotions Smartly

If you want to be in control of your legal analysis, you need a clear understanding of the emotions you're trying to invoke in your reader.
  • Joe Regalia
Legal folks (and especially judges) love suggesting that legal analysis is all about reason. We “call balls and strikes,” Justice Roberts famously said. But analyzing legal issues–and, more importantly, making decisions–is as much about emotion as it is about the law. And that’s according to science. 
To put a fine point on it, consider the famous example of Elliot, a man who suffered damage to the part of his brain that allows us to experience emotion. Elliot is a rationalist’s dream: A person who makes all his decisions based solely on reason. 
But it turns out that being entirely rational is about the most dysfunctional mindset ever. After the injury, Elliot was kind, smart, and articulate–but he could no longer make even the smallest decisions now that his emotions were out of reach. He lost his job, his wife, and much more. 
The truth is, without emotion, Elliot could generate ideas all day long. But it was almost impossible for him to value those ideas. In short: Without emotions, we humans don’t even know how to make a decision.
So if it’s a scientific fact that emotion is a key part of our decision-making, then how could you leave it out of your advocacy? The short answer is you can’t. Your reader’s emotions will play a part in whether they side with your view. Emotions will shape how your reader sees factual and legal issues. 
When you’re writing about anything important in your document, consider what emotions you want to trigger in readers. Consider if there are labels, language, or details you can share that will help your reader see your client and your view of the law favorably–and opposing parties and points less favorably. 
But there’s a catch. Legal audiences (like judges) generally view themselves as rationalists whose sole job is to make decisions based on the law. So if you overtly play to your audience’s emotions, it will most likely backfire, making them even more skeptical. 
Your goal then should be to take a couple of careful steps:
  • Figure out what emotions you want to target with your readers.
  • Learn simple tactics for triggering readers’ emotions.
  • Ensure you’re subtly touching on emotions so readers don’t get annoyed. 
In considering your readers’ emotions, remember that we literally cannot make decisions without emotion. So this isn’t about manipulating anyone. It’s about highlighting details or choosing language that will lead readers to the emotions you think will help them make decisions about a particular point. 
Often we humans can’t even see through our own bias or preconceived notions without some emotional nudging. So if you want your reader to view a party with impatience, tell a story about how much the party was delayed. If you want your reader to view a party with frustration, guide them there using choice details and language. 
Also, know that the more you trigger your readers’ emotions, the more they will pay attention to your writing. So using language that triggers your readers’ senses, values, and emotions will generally make your writing more engaging, which is usually good. 
Above all, you should be aiming to trigger emotions like trust and affinity. That is: You should be seeking for your reader to like you. The more credible you are to readers, the nicer you are–the more that positive emotion will tip your readers to your side. 
So if you don’t think all that work for readers is worth it–like distilling takeaways for readers, using simpler language that doesn’t talk down to readers, cutting distractions, and even excellent style–then you couldn’t be more wrong. Because judges and other legal readers are surely in the same camp, like the famous studies suggesting that jurors are most likely to rule for a lawyer they like. The nice thing is with your writing, your likeability is entirely in your control because it will all stem from what’s on the page, not what you look or sound like. 
Beyond your defaults of engaging, likable writing choices, you have several tools that can help in the emotion department. For one, the words you choose can change the world your readers see. In a later chapter, we will explore the power of targeting verbs for a particular emotional goal. You can do the same thing with nouns: Labeling something as a “surcharge” versus a “penalty” will trigger different emotions and reactions, for example. The same goes for what details we choose to support a legal element and our choice in relating the factual story behind our document. 
A final critical concept is the difference between emotional guidance and direction. Your readers are much more likely to be skeptical the more you direct their emotions. Examples include subjective opinions like the opposing party is “flagrantly misrepresenting the caselaw.” That language is meant to incite your reader, but it’s directive. It’s telling your reader what to think. And readers don’t like that, especially when it comes to emotionally-charged points. 
Instead, emotionally guiding your reader would involve choosing details, the order of those details, and the language you use to frame your points so that your reader is guided to those emotions. Perhaps you highlight the opposing party’s statements about the case alongside what the case actually said. And you use more subtly guiding language like: “Counsel chose not to mention X,”–which is designed to place blame on the opposing side without relying on your -own directive language about what to believe. 
When you dig into your writing, you’ll realize there are all sorts of places where you can make decisions that will affect your readers’ emotions. Should you call the expert’s exhibit the “Scientific Report” or “Park Affidavit”? One reinforces that this is a trustworthy, scientific document. The other doesn’t. Should you call a dispute between two feuding companies a “disagreement” or a “trade war”? The choices go on and on. And if you’re tuned in to the emotional goals you have for readers, you’ll discover many more. 
If you really want to take this superpower to the next level, consider these tips from cognitive scientists: 
  • Audiences will weigh losses twice as heavily as they will gain. So encouraging a reader to think about the negative effects of something will hit much harder than encouraging them to think of the positive gains for the court, for the public, or whatever else you’re talking about. 
  • Audiences weigh something more heavily if they can imagine it happening to them or a loved one. So the more relatable you can make points, legal or factual, the better. This is also why you should always consider policy, values, and other practical ramifications of your arguments. Your audiences will. 
  • Audiences are swayed by many, many thinking shortcuts. They prefer simple solutions to complicated ones. They prefer arguments that sound “legal.” They prefer arguments that sound logical (even if they, at heart, the argument is anything but). They value concepts they are familiar with more heavily than those they aren’t. Audiences value writing that looks more like they wrote it. It’s important to be aware of thinking shortcuts like these because we all use them. And watching out for them can help you counteract this thinking in your audiences. 
Joe Regalia
Write.law co-founder Joe Regalia combines his experience as both practitioner and professor to create exciting new ways to teach legal skills.  Learn more about Joe

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