“Making It Sing: How Rhetorical Writing Techniques Can Improve Your Writing,” by Brian Porto, was originally published in the Summer Edition of the Vermont Bar Journal. It is republished here with permission.
I am the last one to suppose that a piece about the law could be made to read like a juicy sex novel or a detective story, but I cannot see why it has to resemble a cross between a nineteenth century sermon and a treatise on higher mathematics.
The late Professor Fred Rodell of Yale Law School once observed of legal writing, “I am the last one to suppose that a piece about the law could be made to read like a juicy sex novel or a detective story, but I cannot see why it has to resemble a cross between a nineteenth century sermon and a treatise on higher mathematics.” Those words, written in 1962, still ring true today, as any law student reading judicial opinions and any judge reading lawyers’ motions and briefs can attest.
Several likely culprits account for the poverty of style in much legal writing. First, many of the topics that must be addressed (e.g., sovereign immunity, laches, or the statutory standard for modifying a spousal maintenance order) are not inherently engaging. Second, lawyers often face considerable time pressure while writing; hence they are satisfied with pleadings and appellate briefs that are clear, grammatically correct, and reasonably concise. Rhetorical elegance may be a luxury they feel unable to afford. Third, they probably did not learn how to write elegantly in law school because the writing professor was necessarily preoccupied with purging comma splices, the passive voice, and hoary legal jargon from a small mountain of papers.
Consequently, unless a lawyer uses uncompensated time to learn how to write elegantly, that lawyer will at best write serviceable, but unmemorable, prose, thus foregoing an extra edge that could mean the difference between winning and losing a case. To give you that extra edge, this article will present rhetorical techniques you can use to dress up your prose without bloating it with adjectives or otherwise sacrificing the clarity and brevity that legal writing requires. For examples, it will draw on the work of several of the Supreme Court’s best writers, who used rhetorical techniques to produce some of the most momentous opinions in the Court’s history.
Rhetoric: A Short History
The word “rhetoric” has a negative connotation these days, calling to mind “meaningless political exaggeration or mere stylistic embellishment.” But rhetoric is a venerable discipline, dating back to the ancient Greeks. Rhetoric is most succinctly defined as “the art of civic persuasion.” Its importance to public discourse is reflected in the words of its most prominent practitioner, Aristotle, who said, “[I]t is not enough to know what to say—one must also know how to say it.”
Despite its classical pedigree, rhetoric was controversial even in ancient Greece; indeed, Plato (Aristotle’s teacher) had no higher opinion of it than do modern voters who use it to characterize what they perceive as empty promises by politicians at election time. In Plato’s view, rhetoric was manipulative and unable to lead to truth; only “dialectic” (philosophy), a reasoned exchange of ideas between two scholars, could reveal the truth. Put simply, Plato thought rhetoric lacked intellectual substance. Rhetoric likely got its bad reputation from the Sophists, contemporaries of Plato who were courtroom advocates and teachers of rhetoric known for trying spurious lawsuits, thereby spawning the term “sophistry” to denote clever, but false argument.
Aristotle, however, defended rhetoric, arguing that a rhetorician attempts to persuade not only by appeals to the emotions (pathos), but also by appeals to logic (logos) and by demonstrating an ethical character (ethos). Therefore, in Aristotle’s view, rhetoric served justice rather than thwarting it, by facilitating the consideration of opposing viewpoints, which begets truth in the courtroom.
Rhetoric was out of favor in American legal education during the nineteenth century, as law schools adopted a truth-seeking “scientific” approach to teaching law that cared not for how a legal argument was presented, only for the truth of its contentions. By the turn of the twentieth century, though, rhetoric began to enjoy a renaissance, as Plato’s quest for absolute truth had become outdated, and scholars increasingly saw truth as relative and the offspring of a rhetorical process. Nowhere is such skepticism more evident than in the famous statement by Justice Oliver Wendell Holmes, Jr., that “[t]he life of the law has not been logic; it has been experience.” Implicit in that statement is the recognition that judges decide cases not by finding absolute truth, but instead, by reconciling competing and relative interests, which necessarily involves subjective judgment. More recently, Judge Richard Posner of the Seventh Circuit has written that rhetoric is important because “many legal questions cannot be resolved by logical or empirical demonstration.” Put another way, no matter how compelling an argument one can make that the Supreme Court decided Lochner v. New York wrongly, “[i]t’s impossible to prove Lochner was decided wrongly.”
Using Rhetorical Techniques in Legal Writing
Sprinkle, don’t pour, rhetorical devices on your writing.
Legal writing can benefit from several rhetorical devices, including imagery, figures of speech, word choice, rhythm, and literary allusion. Vivid imagery is always more memorable, hence likely more persuasive, than colorless or muted language. For example, if you were writing the statement of facts for a memorandum or brief in a drunk-driving case, you could write: “On his way out the door, Smith staggered against a serving table, knocking a bowl to the floor.” But your description would better evoke intoxication if you wrote: “On his way out the door, Smith staggered against a serving table, knocking a bowl of guacamole dip to the floor and splattering guacamole on the white shag carpet.”
Figures of Speech
Figures of speech are designed primarily to add drama and emphasis to a discussion. They do so by using familiar words in an unfamiliar way, often injecting eloquence into an otherwise mundane sentence. Consider, for example, two figures of speech traceable to classical rhetoric: “isocolon” and “antithesis.” Isocolon denotes a sequence of clauses of identical length, and antithesis is a method of contrasting ideas through the use of opposites. Both techniques are evident in the following sentence:
The patent system rewards those who can and do, not those who can but don’t. The clauses “those who can and do” and “those who can but don’t” illustrate isocolon because they are of identical length. They also illustrate antithesis because they present direct contrasts by juxtaposing a word and its opposite twice in quick succession. The rhythm of the two matching clauses and the juxtapositions of opposites make the sentence above easier to remember than if it merely stated that “the patent system rewards action.”
Word choice is another feature of classical rhetoric that can enhance the power of legal documents. Teachers of classical rhetoric taught their students to maximize the persuasive effect of words by presenting items and actions in groups of three. This device is known as “tricolon.” Julius Caesar must have been paying attention because he was careful to summarize his military campaign in Gaul by stating: “I came, I saw, I conquered.” Other noteworthy examples are the New Testament’s reference to “faith, hope, and love”; the promise of “liberty, equality, and fraternity” in the French Constitution; and the aspirations of “peace, order, and good government” in the Canadian Constitution. The most famous American example of tricolon is probably the Declaration of Independence’s reference to “life, liberty, and the pursuit of happiness,” to which goals the drafters, in another bow to classical rhetoric, pledged “our lives, our fortunes, and our sacred honor.” The latter phrase is especially rhythmic, hence easy to remember, because it not only identifies three separate concepts, but also proceeds from a one-syllable word (lives) to a two-syllable word (fortunes), to two words with two syllables each (sacred honor).
Other examples of word choice derived from classical rhetoric are similes and metaphors. Despite being rhetorical cousins, they differ in that similes make explicit comparisons, whereas metaphors make implicit comparisons. Moreover, even when a simile makes a figurative comparison between two things that are not literally alike (e.g., a sprinter leaving the starting blocks and the proverbial “bat out of hell”), it uses an explicit word of comparison, usually “like.”
I am reminded of funny similes I have heard. A South Dakota farmer once told me that during hard times, one has to “hunker down like a jackrabbit in a hailstorm.” Years later, another man educated me to a wonderful West Virginia simile, which describes a politician who is “as slick as goose poop on a hoe handle.” Somehow, I doubt Aristotle ever heard either of those.
Similes can work as well in legal writing as they do in conversations over the back fence. For example, in Jesperson v. Harrah’s, the plaintiff employee sued her former employer, a casino, after she was terminated for refusing to wear makeup on the job, contrary to the employer’s grooming code. An amicus curiae brief for the employer defended the grooming rules, arguing that standards were necessary lest the employer have “employees who sport jewelry like Mr. T., wear makeup like Gene Simmons of Kiss, dress like Dennis Rodman, have hair like Fabio or [have] beards like a member of ZZ Top.”
A more restrained, but still vivid example of a simile appears in a concurring opinion by Justice Robert H. Jackson, whose name almost always appears on lists of the Court’s all time best writers. In Edwards v. California, the Court reversed a man’s conviction for transporting his brother-in-law, who was indigent, to California in violation of state law. Justice Jackson concurred, reasoning that because the indigent man was obligated, as a citizen, to defend the United States, he had a concomitant right to migrate wherever he wished in this country. Jackson then added,
Unless this Court is willing to say that citizenship of the United States means at least this much to the citizen, then our heritage of constitutional privileges and immunities is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.
Metaphors are more versatile and variable than similes because they can take different grammatical forms; they can be complete sentences or even complete paragraphs, yet they can also be phrases, clauses, or individual words. Writers can use metaphors to express logos, pathos, or ethos. Metaphors serve the logos function by providing readers with symbolic analogies that can magnify, hence clarify, a writer’s substantive point. They serve the pathos function, too, either by invoking an emotional reaction the writer sought or simply by being pleasing to the ear, thereby heightening the reader’s interest and attention. They even serve the ethos function by elevating the reader’s estimation of the writer’s intelligence and credibility.
Justices Jackson and Holmes were the grandmasters of metaphor among Supreme Court justices. Many of Jackson’s metaphors startle at first, but then enlighten as the reader acclimates to the appearance of evocative words in unfamiliar settings. For example, Jackson wrote, in various opinions, that the practice of expelling aliens after long residence in this country “bristles with severities” and that the due process clause is “cryptic and vagrant.” In other Jackson opinions, an inadequate court record “shows us something of the strings as well as the marionettes” and the invalidation of an ordinance regulating speech may “convert the constitutional Bill of Rights into a suicide pact.”
No more powerful metaphor has ever illuminated a judicial opinion than that of “free trade in ideas” penned by Justice Holmes in his dissent in Abrams v. United States. A Holmes biographer, Max Lerner, described Holmes’s Abrams dissent as “the greatest utterance on intellectual freedom by an American, ranking in the English tongue with Milton and Mill.” The language on which this testimonial focuses is in the final paragraph of the dissent, which begins as follows:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
Holmes, like Jackson, had a remarkable ear for the rhythm of language, which is why the opinions of both men sang as much as they spoke. Holmes and Jackson are famous for aphorisms: short, pithy phrases or sentences that encapsulate the thesis of an entire opinion. Holmes wrote that “taxes are what we pay for civilized society” and that “great cases like hard cases make bad law.” He also wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic.” Of course, Holmes’s sense of rhetorical rhythm also prompted him to defend forced sterilizations of the intellectually impaired by proclaiming that “three generations of imbeciles are enough.” The latter example reminds us that rhetoric can serve both dubious and desirable public policy goals.
Jackson’s aphorisms used a rhetorical technique known as “inversion,” which transforms a direct statement into a complex proposition or even a paradox, which the aphorism then solves. In one example, he observed, “It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.” In another, referring to the Supreme Court as an institution, he noted, “We are not final because we are infallible, but we are infallible only because we are final.”
A fine, flowing rhythm is also evident in the following passage from Justice William Brennan’s majority opinion in New York Times v. Sullivan, which broadened press freedom by raising the bar a public figure must clear to establish defamation. It illustrates what Judge Ruggero Aldisert has called Brennan’s capacity for expressing “the perfect blend of sobriety and emotiveness … ”
Thus, we consider this case against the background of a national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
The rhythm in Justice Brennan’s language derives from its use of tricolon, the ordering of concepts in groups of three discussed earlier. Note, for example, his emphasis on the principle that public debate should be “uninhibited, robust, and wideopen,” even though one result might be “vehement, caustic, and sometimes unpleasantly sharp attacks” on government and its officials. The double dose of tricolon makes this sentence roll easily off the tongue when read aloud, reflecting its author’s careful attention to rhythm.
Space remains to discuss one last rhetorical tool evident in elegant opinions: literary allusion. References to literature in judicial opinions, like metaphors and similes, derive their power from surprise; therefore, if used frequently, they lose their novelty, like the oft-repeated punch line of an outdated joke. Robert Jackson’s uncanny ear for language helped him to use literary allusions to underscore the strength of his substantive points. For example, in rejecting the Court majority’s explanation for upholding an administrative decision that had been previously disapproved, he wrote in frustration, “I give up. Now I realize fully what Mark Twain meant when he said, ‘The more you explain it, the more I don’t understand it.’” Regarding the Court’s endorsement of the separation of church and state, yet its approval of public support for transportation to parochial schools, Jackson observed, “The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, ‘whispering, “I will ne’er consent,” consented.’”
The caution that “irresistibly” comes to my mind regarding literary allusions is that they are only effective when they are familiar. Therefore, avoid annoying the judge in your case by inserting in a motion or brief an obscure literary reference the judge is unlikely to recognize.
Good editing will leave no trace of its presence, just prose that flows naturally, occasionally flashing a gleam of elegance along the way.
The rhetorical techniques presented here may well elude you when writing a first draft, but try to incorporate them into your editing process. Recall the earlier examples. If you are prosecuting a DWI case, edit your prose to paint a verbal picture of the defendant’s clumsy exit from the party, which caused a gooey river of guacamole to ooze its way through the pristine pile of the host’s white shag carpet. In a patent case, do not settle for your first draft’s statement that “the patent system rewards those who can and do” when you can add the rhythm provided by isocolon and antithesis, resulting in: “The patent system rewards those who can and do, not those who can but don’t.” When revising, use tricolon whenever three nouns or adjectives are appropriate and available. “Life, liberty, and the pursuit of happiness” is easier to recall than just the first two. And be alert to an opening for a metaphor, a simile, or both. Perhaps, in a criminal case, you can say that the codefendant was a perverse puppeteer who manipulated your client like a marionette in a misguided puppet show.
Remember, though, that elegance is not an end in itself; it must serve the overarching goal of persuasion, so sprinkle, don’t pour, rhetorical devices on your writing. And take to heart the words of painter James McNeill Whistler, who said, “A picture is finished when all trace of the means used to bring about the end has disappeared.” The same is true for your legal writing; good editing will leave no trace of its presence, just prose that flows naturally, occasionally flashing a gleam of elegance along the way.
Brian Porto is Professor of Law, Vermont Law School. J.D. Indiana University-Bloomington; Ph.D. Miami University (Ohio); B.A. University of Rhode Island. Author of four books, most recently “The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports” (U. Mich. Pr. 2012).