Writing to Persuade
Mary Vasaly*

Professor Timothy Terrell gave an animated and forceful presentation on the subject, "Writing to Persuade" at the CAL annual meeting in Reno. A professor at Emory University School of Law, Professor Terrell co-founded LAWriters, a group of lawyers who specialize in training other lawyers, judges, and business professionals how to become very effective writers. Although he began his presentation with the observation that in law schools, people don't believe that writing as a subject has any intellectual content, his powerful presentation proved otherwise.

Professor Terrell explained that his writing strategy focuses on the process of reducing the reader's resistance to the writer's argument. In traditional legal writing, the writer attempts to beat the audience into submission. Because that approach never works, Professor Terrell advises that the legal writer attempt to minimize persuasive pressure, using only the effort needed for the problem at hand. Persuasive effort, he observed, can be expressed mathematically as a function of distance multiplied by resistance. The advocate's job, he explained, is to decrease the distance between the writer's proposition and the legal principles that the judge has internalized by making it more comfortable for the judge to accept the writer's position. At the same time, the writer should try to increase the distance between the opponent's proposition and those judicial principles.

How is this done? Professor Terrell explained that the advocate reduces resistance by making:

• The goal more attractive;
• The obstacles less difficult;
• The writer's company along the way more agreeable; and
• The road smoother, straighter and faster.
  

Professor Terrell pointed out that most lawyers are trained to "think like a lawyer" in law school. But if a lawyer wants to use writing to persuade, it is just as important that the lawyer "think like a rhetorician" and a writer. To think like a rhetorician is to adopt a modified version of the principles of Greek rhetorical theory: ethics, logos, axios, and pathos.

Professor Terrell spent most of the program, however, explaining how to "think like a writer." Thinking like a writer involves principles of "super-clarity." He observed that the writer, when thinking like a lawyer, focuses on legal complexity, logic and precision. Instead, the writer should think like a writer, focusing on making the law appear to be simple (comprehensible) and the writing coherent and forceful.

Just as the lawyer cannot simply memorize a collection of unassociated legal rules, but must also master the underlying principles that guide judges in difficult cases, ProfessorTerrell explained, the legal writer must do more than memorize grammatical rules and techniques. The writer must learn and apply writing principles. The writer who fails to recognize and apply these principles will produce fundamentally inferior work. Unfortunately, Professor Terrell observed, law offices are mired in writing technique. To improve writing, the conversation must rise to the level of principle. Professor Terrell used the example of the basic rule: "Write short sentences." Instead of slavishly following this rule, the writer should consider the underlying principle: the writer must write sentences that can easily be processed by the reader. He recommends that the writer first edit to make sure that the work reflects adherence to underlying writing principles before editing for technique.

Professor Terrell used an interesting metaphor to explain the writer's task. The writer's job of moving an idea from the writer's head into the head of the reader is like moving a liquid into a new container. Writers frequently "dump" information onto the page as quickly as possible without first building the "container" necessary to hold that information. The reader feels as if she is being squirted in the face with a squirt gun and thus resists the writer's idea.

Professor Terrell offered three "Big Principles" in editing to make the reader understand. (1) put focus before details, (2) put old information before new, and (3) make the structure explicit.

Putting focus before details, Professor Terrell explained, helps the reader to organize information as it is received so that the reader can immediately identify what is important and remember it. This makes the reader "smart" and more able to accept the writer's version of the facts. By putting context first, the writer becomes more proficient at identifying for herself which facts are important and deserve emphasis.

Second, Professor Terrell's super-clarity paradigm puts old information with new information. The writer should consider what information the audience already knows and what information is new. Is the judge a bankruptcy specialist or a generalist? By attaching new information to old information the writer creates a logical flow that is coherent and understandable. Professor Terrell noted that reversing the order -- putting new information first -- makes the writer seem arrogant because the reader cannot understand the information provided.

Professor Terrell makes structure explicit by using internal headings, "focus" paragraphs and numbering points. A writer should also structure facts the same way. This is important because it provides the reader with a road map of the argument. The reader can then concentrate fully on the content rather than devoting time to wondering where the writer is going. Road mapping makes the reader relaxed and more receptive to the argument because she knows where she is going. Making structure apparent has the added advantage of making the writer appear to be confident, completely in command. Headings are an up front "in your face" structure. However, a writer who sets up a structure and then fails to follow it appears stupid and lacking control. Structuring the argument of the opponent can be particularly powerful. A strong structure makes the argument simple, visible and congruent.

Professor Terrell's presentation demonstrated that legal writers who adopt his "super-clarity" model will write more persuasively.

* Ms. Vasaly is a partner with the Minneapolis law firm, Maslon Edelman Borman & Brand. She has more than eighteen years experience in the area of civil appeals and co-edited the Eighth Circuit Appellate Practice Manual, which was published in 2001. Ms. Vasaly may be contacted at Maslon Edelman Borman & Brand, 3300 Wells Fargo Center, Minneapolis, MN 55402; by telephone at (612) 672-8321; by email at mary.vasaly@maslon.com; or through her firm's website, www.maslon.com.