Rhetoric (2005)
LEGAL WRITING
STUDY NOTES 13
Persuasiveness: Rhetoric in legal writing
To be persuasive we must be believable; to be believable we must
be credible; credible we must be truthful. -- Edward R. Murrow
1.Meaning of rhetoric.
Rhetoric is generally understood as the study of communicating
effectively, in speaking or writing. Effectively describes the
quality of the writing which makes it achieve its specific
purposes.
When it comes to writing of pleadings and documents in
litigation or in situations in which parties take divergent
positions, the principal goal of writing is persuasion, or the
potential of the pleading or document to attract the reader to the
writers side. In this context, the term rhetoric is defined as the
art of persuasion, or the technique of using the possibilities of
language for purposes of persuasion. Rhetoric involves learning the
best practices of persuasion in writing and developing the skills
necessary for applying them in the field of legal writing.
2.Content and form.
In studying what language tends or doesnt tend to persuade, two
important elements have been identified in a piece of writing --
content and form, or what is written and how it is written. In
classical writing on rhetoric, these two elements are logos and
lexis, referring to the logical content of the document (logos) and
the style or manner by which it has been written (lexis).
It is difficult to separate these elements in explaining the
persuasive impact of a written document. The how by which something
is written (e.g. the choice or arrangement of words) affects, and
is affected by, what is written (e.g. the substance of the
argument), and vice versa. Thus, the whole meaning of the writers
thoughts, and their persuasive influence, are embodied in both the
substance and form of the document. What is written and the way it
is written make up the totality of the message the writer seeks to
convey to the audience. The thoughts and the words that express
them are essentially indivisible.
Rhetoric has also acquired a less than favorable connotation.
This is traceable to the overstress on the how of writing as in the
choice or play of words with little or no regard for its substance.
One sometimes gets the impression that an argument, for example, is
mere rhetoric: it is couched in nice words but packs little
substance. 3.Three means of persuasion.
Aristotle wrote: Of the [modes of persuasion] provided through
speech there are three species: for some are in the character of
the speaker, and some are in disposing the listener in some way,
and some in the argument itself, by showing or seeming to show
something. [footnoteRef:2] [2: On Rhetoric, at 1356b]
Applying this Aristotelian view, one discerns that a legal
document produces an interaction between and among the writer, the
content and form of document, and the reader. Rhetoric concerns
itself with developing the means of persuasion focusing on each of
these factors and their mutual interaction.
These persuasive means are found in the character of the writer,
or in the emotional state of the reader, or in the body of the
document itself. Three types of persuasive appeals have been
identified. One is logos, or the persuasive appeal coming from the
content of the document. Second is pathos, or the effect of the
document on the readers emotion. Third is ethos, or the persuasive
appeal derived from the writers character or credibility.
A legal writer needs to pay attention on all of these three
means, and to employ them prudently, to produce a persuasive
document.
4.Logos or appeal to reason.Appeal to reason lies at the heart
of the legal document. Logical reasoning refers to the internal
consistency of the body of the document, and takes into account
such factors as clarity of presentation, flow of logic, and
sufficiency of proof. The documents logical appeal depends on how
the legal writer uses the structures of reasoning (deductive,
inductive, analogy), the methods of analysis (based on the rule of
law, principles of logic, or policy considerations), and the
organized order of the reasons or arguments. Of course, logical
appeal is affected negatively by the writers resort to fallacies of
argument. 5.Pathos or appeal to emotion.While logos is addressed to
the readers reasoning mind, pathos strives to touch the readers
senses, attitude, and emotion. It is an important consideration for
the legal writer to know the intended audience (e.g. a judge) of
the document and to craft it carefully enough to induce a state of
mind which is favorable to the legal writers cause. The saying that
judges ought to decide cases strictly on the basis of logic and
evidence (i.e. logos) admits the reality that judges may be swayed
by arguments that appeal to their personal experiences, interests,
preferences, or biases. 6.Ethos or appeal to character.Ethos is
appeal to the character or credibility of the writer. The quality
of legal document somehow reflects on, and is a reflection of, the
character of the writer. Whatever you write reflects who you are
and how your mind operates. [footnoteRef:3] Character is fate for a
man. [footnoteRef:4] Quality writing is done by people of quality.
[footnoteRef:5] [3: Bryan A. Garner. The Winning Brief, 2d Ed.,
459] [4: Attributed to Greek philosopher Heraclitus ] [5: George
Kennedy et al., The Writing Book 133 (1984); Garner, The Winning
Brief, op cit., 458]
A lawyers cause is influenced by his or her reputation related
to expertise or probity, and by the quality of the document in
substance, form, and appearance. When someone is generally viewed
as a legal authority on an area of law, or is well-known for
integrity, this impression adds to the credibility of the lawyer,
and this favorable impression disposes the judges mind to be open
to the impression that the lawyers position likely has credence. If
the lawyer is credible, maybe his clients legal stand is also
credible. Its human nature that we buy ideas from people we like
and trust. [footnoteRef:6] [6: John R. Trimble, Writing with Style
6 (2d Ed. 2000); Garner, The Winning Brief, op cit., 459]
The ethical appeal of the legal document is also enhanced by its
general observance of the qualities of effective writing and the
clarity of the reasoning employed. 7.Figures of speech.As language
is the main resource of rhetoric in writing, several rhetorical
devices, also known as figures of speech, have been invented with
the aim of enhancing the persuasive effect of a document.It would
be very useful for the legal writer to be familiar with the various
flowers of rhetoric. Since they depart from the usual, the legal
writer must exhibit special care. But when used with judiciousness,
these figures of speech add elegance and force to the
arguments.
For further reading
1. Stephen V. Armstrong and Timothy P. Terrell, The Rhetoric of
Persuasive Writing2. Robert A. Harris, A Handbook of Rhetorical
Devices by Robert A. Harris
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