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. 1
Applying this Aristotelian view, one discerns
document produces an interaction between and among
content and form of document, and the reader. Rhetoric
with developing the means of persuasion focusing on
factors and their mutual interaction.

that a legal
the writer, the
concerns itself
each of these

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.

1 On Rhetoric, at 1356b
2

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. 2 Character is fate for a man. 3 Quality
writing is done by people of quality. 4
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. 5
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.
2 Bryan A. Garner. The Winning Brief, 2d Ed., 459
3 Attributed to Greek philosopher Heraclitus
4 George Kennedy et al., The Writing Book 133 (1984); Garner, The
Winning Brief, op cit., 458
5 John R. Trimble, Writing with Style 6 (2d Ed. 2000); Garner, The
Winning Brief, op cit., 459
3

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 Writing
2.
Robert A. Harris, A Handbook of Rhetorical Devices by Robert A.
Harris