Update (June 21, 2017): We have covered the lawsuit of Kristin Naca v. Macalester College previously. Ms. Naca has had limited success so far in her lawsuit against the college which is based on her having been fired from her position as an assistant professor of poetry for allegedly inappropriate conduct with a former student. Now Ms. Naca is trying to amend her complaint a second time. (U.S. District Court Judge Patrick J. Schiltz (D. Minn.) struck her first complaint, requiring her to amend already once before.)

Macalester College’s opposition to Ms. Naca’s recent motion to amend is blistering. But we note that the use of typography to communicate intensity is significantly toned down from another brief by lawyers at the same firm, the subject of the original post below.

In our view, hard-hitting language written in a subdued tone is actually far more persuasive and effective than rhetoric that is bombastic, typographically or otherwise. Compare this to this and see what you think. Obviously, the subject matter is dissimilar. The audience is not identical (different judges). And there is no empirically provable better approach. Having said that, there can be little dispute that a somewhat detached, dispassionate, and reserved tone is the safer course in legal writing.

Original post (May 12, 2017) (under the headline, “Practice Pointer on Language, Rhetoric, Persuasion, Emotion, and Style”):

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

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

ALLCAPS??? Multiple punctuation marks??? Other colloquial expressions or punctuation? 😉 (!?) 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 the heavy use of bold-face type in the brief. 

It seems a bit much.

Most judges approach their work with cool deliberation. Some judges will consider direct appeal to emotion 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 of 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 “The Superior Power of Dispassionate Passion

  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.

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  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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