How Not To Kidnap Your Reader
There's a special form of legal terrorism going on out there. Judges everywhere are being abducted and taken on horrific journeys that they never knew they were in for.
Well, only kind of.
What I'm talking about is the tendency of advocates not to tell the judge where they want to go and how they're going to get there. The result of such a failure is that the decision maker you are trying to persuade feels like he or she has been dumped in the trunk of your car in the dead of night. Instead of persuasion, the reader feels disorientation or worse.
After the jump, read an illustration of the problem and some approaches for how to take your reader along for the ride while not making them feel like they've been abducted.
How hard is it to ride from Houston to Dallas? It doesn't sound hard, but it really depends, doesn't it?
If I tell you that I'm going to pick you up at 9:00 a.m. and that we're going to drive from Houston through Huntsville, stop for a break in Centerville and then on through Ennis to Dallas for an event you want to attend, it's easy--maybe even pleasurable.
If, however, I tell you that we're going to Dallas, and I pick you up at a random time and then drive from Houston to Bellville to Mexia to Waxahachie to Texarkana to Dallas, your destination is the same, but your stress level is way up. You don't know why I'm making any given change of direction, and I'm unlikely to tell you.
Even worse, what if you wake up in the trunk of my car and I let you out in Centerville in the dead of night and you have to ask directions to Dallas? You're on a whole different type of journey. Scary, difficult and potentially dangerous.
Why are you complaining? I got you most of the way there.
Any one of these journeys can happen in the course of a brief or motion.
- The last example is the brief or motion that jumps in at the middle and leaves the judge to fend for him or herself.
- The middle example may tell the judge where you're going, but keeps the route and the reasoning a complete mystery for the judge to piece together.
Both of these types of judicial kidnappings result from writing too soon and planning too little. You're writing your brief before you have your "elevator speech"--knowing your argument and it's reasoning, in order, boiled down to something you can say in one breath.
Professor Lipshaw of the Legal Profession Blog, puts it this way:
The "Elevator Speech" Failure: This is the basic compositional and organizational failure. I can barely read your paper because I have no clue from section to section, paragraph to paragraph, and sentence to sentence, why I am reading what I'm reading. Before you start writing you should have an outline in mind, and it's not just a placeholder for the data you've collected. No, it's the elevator speech - the argument you make if you get on the elevator at the ground floor and have to present your conclusion in the ninety seconds or so it takes you to get to the fiftieth floor.
When you follow this practice, you get the first kind of journey: pleasurable, logical, and (when written) persuasive. It is the result of following that old carpenter's rule: measure twice, cut once. Or using a mashup of the old Ernest and Julio Gallo tag line: "We will write no line before it's time."
Said yet another way:
- Start with a suitable plan
- Make your plan apparent to your reader
- And stick to it.
The court is a whole lot more likely to find itself well-disposed to your position if it does not feel itself being abducted and dumped in Centerville in the dead of night.
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Good stuff, Kendall. Thanks.
Kendall--thanks for mentioning both Ennis and Waxahachie in this post! We Ellis County folk love the plug! I think your argument applies to oral arguments and trials as well. Well, and just about any kind of public speaking for that matter. Great job.
Alison and Rob:
Thanks for the kind comments. And thanks for reading. But Alison, seriously? 11:18 on a Friday night??
Alison you are absolutely right about the public speaking part. I have a post in the pipeline about the upcoming UTCLE seminar on preparing for oral argument. Step One in my outline in my process is "Don't figure out what you're going to say." Get your thinking clear and organized FIRST and the outline will come from there. Only then can you get your words down. Otherwise, you risk kidnapping the whole panel.