When, IF EVER, is OUTRAGE appropriately expressed in legal writing???

When should lawyers useĀ bold italics for emphasis (or for anything?)???

ALLCAPS??? Multiple punctuation marks??? Other colloquial expressions or punctuation? šŸ˜‰ (!?) OMG LOL

We recently praised the reply brief of Faegre Baker Daniels lawyers in the Sorin Group v. St. Jude Medical as “strong advocacy” but we could not help but notice theĀ heavy use of bold-face type in the brief.Ā 

It seems a bit much.

Most judges approachĀ their work with cool deliberation. Some judges will consider direct appeal to emotionĀ to be manipulative and a form of interference rather than assistance as they confront complex legal analysis. Trying to stir courts’ passion or outrage, therefore, can be a high stakes gambit. And use ofĀ bold face type to draw attention to key points seems a little patronizing, does it not? Is it saying to the reader: “DUDE: Wake up! I really mean this! Seriously, c’mon. YO!”

On the other hand, there is no doubt that the sparing use of florid rhetoric, a glimpse of linguistic intensity, might penetrate a reader’s mind in ways that dry exegeses can never do. Consider intensity or passion in legal writing like an intense spice. A little bit will add the critical zing. Too much will disgust.



3 Comments on “Practice Pointer on Language, Rhetoric, Persuasion, Emotion, and Style

  1. anon

    We don’t expect attorneys during oral argument to present in a monotone affect. So, should it really to be disfavored when a bit of emphasis works its way into a written brief? There are many oral rhetorical devices that just don’t translate well into the written form of a legal memorandum (alliteration, irony, repetition, sarcasm) – so a few bold face phrases (in this case, just over one per page) is not too much to handle. Consider also that the reader might easily understand the intended meaning conveyed by the use of bold-face without the additional assistance of an explanatory footnote. Now, we don’t expect attorneys to yell during oral argument. Likewise, I would agree that the use of exclamation points and ALL CAPS is less acceptable in a written brief.

    Finally, to be fair, even for a short memorandum, not every judge reads every word. If the use of bold-face gets the judge to pay a bit more attention to a relatively more important passage, mission accomplished.

  2. Adam Gillette

    Listening and reading are two different activities. You don’t want to adopt a monotone at oral argument because a monotone is difficult to listen to. But reading is a different. I don’t think anyone has ever criticized the writing of, for example, Elmore Leonard because he didn’t use enough bold letters and italics. If a brief needs argument in bold or italics or bold and italics to jolt the reader to pay attention, then the problem is the non-emphasized portions of the brief.


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