#LegalEnglish round-up #5

Serendipity is always welcome—especially when it helps a blog post to come together.

No sooner did I announce persuasion as a regular topic on this blog than a spate of articles on persuasion in legal writing reached me through various social channels.

Persuasion, then, is the dominant theme of this round-up post. We’ll also glance at helpful readings on two topics that any ESL attorney who wants to write well on legal topics in English must eventually confront: plain English and using verbs in the passive voice.

1. “Perception and Persuasion in Legal Argumentation: Using Informal Fallacies and Cognitive Biases to Win the War of Words”—article by Cory S. Clements in the Brigham Young University Law Review

This long, detailed article—it is, after all, a law-review article—presents an excellent introduction to the processes of reasoning that inform effective argumentation in law. This article had my full attention when it cited the 1997 third edition of Judge Ruggero Aldisert’s much-needed and thorough book, Logic for Lawyers, a book I knew in earlier editions in my extra-curricular readings during law school in the mid-1990s.

We’ll return to this article’s topics in more than one monthly post on persuasion. For now, you can use these questions as guides for reading this article:

  • What are logical fallacies?
  • What are the differences between formal and informal logical fallacies?
  • Is it unethical for an attorney to deliberately use an argument that is, strictly speaking, “fallacious”?

2. “Persuade Using Both Alpha and Omega Strategies”—online post by Ken Broda-Bahm at Persuasive Litigator, www.persuasivelitigator.com

Good advocates address both sides of an issue when they try to persuade audiences to accept their positions or at least to take their positions seriously. This short article quickly covers that essential territory.

But, as I noted in discussing this link in the “Advanced ESL Legal English” community on Google+, this article also omits a crucial benefit of that rhetorical strategy: advocates increase their credibility by accurately and fairly presenting other perspectives on a case.

When you acknowledge and respond to opposing points of view, your audience will know that you’re informed on the whole field at issue and that you’re not merely partisan. Indirectly, you’re showing that you have nothing to hide and that you’re not afraid of having your audience see other perspectives—presumably because those perspectives are inferior to the one you’re advancing. And, overall, you’ll show your readers a fair-mindedness that inspires trust and confidence, two essential requirements for building agreement with your audiences.

3. “The Battle between Thoughts and Emotions in Persuasion”—anonymous online post at PsyBlog, www.spring.org.uk

The big lesson from the post at this link, especially for ESL attorneys, is that the slightest changes in English vocabulary can make all the difference on whether your audiences do or do not agree with your ESL written Legal English. The post shows that the mere verb you use to express your opinion—“I think” or “I feel”—can help to make your opinion more persuasive, or less persuasive, from one audience to the next.

Watch for one part of this article, though, that I hope will make you as uncomfortable as it made me. Late in the article, the author describes changing between think and feel as “a manipulation that is . . . simple to implement . . . .” A better way to frame this advice is to say that advocates should not mislead and manipulate, but rather find a way to invite an audience to accept a position that has genuine merit.

4. “Legal Writing: Word Choice”—post by Jason Steed at the Legal Solutions Blog, www.westlawinsider.com

The post at this link continues the specific theme of the slightest changes making all the difference in the persuasiveness of your writing. You know that that principle applies when you write legal documents in your native language. Because your writing skills in English are already intermediate or advanced, I know that you can appreciate subtle differences in similar words in English. Our task now is to keep developing your English vocabulary until your awareness of those subtle differences is second nature.

This fourth link’s post on word choice as a means of persuasion illustrates how subtle differences in similar words can move readers toward conclusions that advance your clients’ interests (a process that the writer of item #3 in this round-up probably would call “manipulation”).

The post analyzes three hypothetical sentences. Each sentence is only five words long. All three sentences can describe the same event that involves two people. The subtle differences in word choice between the three sentences encourage readers to sympathize with one of the two people over the other from one sentence to the next.

You should work toward a similar degree of semantic precision in your own writing on legal topics in English. That goal will be easier to reach if you remember examples as clear as those used in the post at this fourth link.

5. “Plain Language: What is Plain English?”—post by Bevan Frank from Frank Communications, www.writeinplainenglish.com

Two particular parts of this link’s post justify including the post in this round-up.

First, it offers a succinct, usable definition of the potentially confusing term “plain English.” What is plain English? It is “writing that is easily understandable for the people who are meant to read it.”

Use that very good audience-based definition, but be careful when you read the post’s next sentence. That next sentence states that plain English “eliminates complicated legal words and phrases so that the reader does not need to have a legal background in order to understand the relevant text.” After doing so well on the general definition of plain English, the writer of the post loses almost everything gained in the definition by making an all-too-common mistake for advocates of plain English: as far as we can tell based on the second sentence itself, the writer assumes that an attorney should always write for non-attorneys.

Yes, it’s best to write human English prose even if you’re writing for a panel of appellate judges. But it’s sheer nonsense to suggest that you should eliminate such refined terms as, for example, subject-matter jurisdiction and personal jurisdiction in an appellate brief just so that you can know that non-lawyers can understand your legal writing. Of course, if you’re actually writing to non-lawyers, then by all means tippy-toe around the legal terminology and write about the court’s power to make decisions affecting the party herself or the power to decide certain classes of cases instead of, or as supporting definitions of, the legal terms that a panel of appellate judges would take for granted.

A much better version of the post’s second sentence on plain English quoted here—a version that jibes with the writer’s own definition of plain English—thus would begin with one key qualifier: Whenever appropriate, plain English eliminates complicated legal words and phrases so that readers do not need to have a legal background to understand the relevant text.

With that key clarification in mind, do read the rest of the piece, especially for its good “before and after” comparisons of non-plain and plain English. I have exercises on such comparisons to help you edit written Legal English to make it more understandable; I hope to use those exercises here on the blog and in the “Advanced ESL Legal English” community on Google+ soon. In the meantime, the short piece at this link eases you into the important exercise of editing English to simplify and clarify a writer’s intended meaning.

6. “The BBC enlightens us on passives”—blog post Geoffrey K. Pullum at the Language Log blog, available at languagelog.ldc.upenn.edu

Most people who take writing seriously have their own pet peeves in other people’s use of language. I admitted as much about some of my own peeves in my post on 10 common usages to avoid in your written Legal English.

The writer of the post at this link, Geoffrey Pullum, finds his own boiling point in the common advice to avoid verbs in the passive voice in written English. Considering all of my own efforts on this blog to keep plain English in a healthy perspective, I find it refreshing to watch someone else challenging standard writing advice for a change.

In this case, though, I don’t follow Pullum, no matter how entertaining his rant is (and it’s very entertaining). The passive voice can be used (as here) more often than some people prefer, and it even can be used effectively. But you still should prefer the active to the passive voice in English prose unless you have a good reason to use the passive voice. As I explained in my post on active- and passive-voice verbs in written English, readers have fewer ideas to process—they must assimilate fewer linguistic concepts—when you use verbs in the active voice. Seen that way, a preference for the active voice shows much more than blind devotion to conventional wisdom: the preference promotes a clarity that enables communication not only to happen at all but also to happen as fast as possible.

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