This post is part of a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.
People aren’t logical. The ones of us who think we are logical are most susceptible to an emotional appeal. If we were swayed by logic, then political and theological opinions would change over the course of Thanksgiving dinner around America, home shopping networks would not be a thing, and Facebook would be the home of polite discourse.
I practice appellate law with a small dose of trial law. What that means is that I craft arguments aimed for judges. When I do trials, I craft arguments for juries. I think in terms of arguments for the reader’s eye versus the reader’s ear. We appellate lawyers can be full of ourselves. Ours is highbrow work. We think we appeal to the mind. The trial lawyers are the ones who make the emotional pitch. Judges don’t help matters much. They go around speaking to continuing legal education seminars and civic clubs. They say in their speeches that they are like umpires. They call balls and strikes. They are impartial. Justice is blind.
And yet the better story wins all of the time. The lawyer who crafts the better story from the facts wins the case. Here’s the other little secret. Legal briefs are a collection of stories. When we cite a case, we are telling the court a story about how their court or a higher court dealt with a person who was just like our client or just like our opponent. We even tell a story about that story. The concept of legal precedent is basically this: a person came before this court who had something happen to him. And you cut him a break. Today, the same thing happened to us. The fair thing to do would be to cut us that same break. The opposite can also be the pitch. There was this one other time where you guys refused to cut someone a break. But our story is different. And because of that difference, please cut us a break.
It all boils down to a set of stories. And we ignore this state of events at our peril. I know it all works like this, and it all surprises me. When I receive an opinion I’m often shocked — sometimes I’m shocked that I won. When I’m surprised by a win, 100% of the time I wrote a brief that told a compelling story. And when I am shocked by a loss it’s because I thought the law was completely on my side. But the other side had a better story.
Stories fill a basic need. There is food, air, and water. And there are stories. Your favorite ride at Disney tells a story. The safety briefing on the plane you take to Disney tells you a story. There’s even moral to it — secure your breathing mask before Gish try to help others with theirs. When we are little, we want to be told stories before we go to bed. We buy stories at theaters, from bookstores, and from stream services.
Your writing, no matter what it is, involves a story. Your term paper tells a story. So does the sign on the break room’s refrigerator at the office that implores people to take their old Tupperware containers out by Friday or they will be thrown away. It is a story of mold. And smells. And limited space. And basic courtesy. It may also be a story of condescension and control. But there is a story behind all such signs.
No matter what you are writing, your reader is not logical. And your reader is not logical because your reader is human.
And yet there is a place for logic and reason. Reason follows emotion. Reason is the second punch in a one-two combination. Your story, if it is compelling gives the reader a desire to do what you are asking (Free the client. Fasten the seatbelt. Buy the deodorant. Take your smelly old lunch home from the breakroom). Logic gives the reader the tools to do the thing you’ve made them desire. Stories trump, but do not replace, logic. If nothing else, logic gives the reader cover that they aren’t being impulsive.
But make no mistake, the walls of the house are built of logic. But the foundation is built of story. If you want to write well, get good at stories.