Persuasive Writing: A Few Big Ideas to Use Today

Persuasive Writing: A Few Big Ideas to Use Today

Effective briefs start and end with persuasion. Simply put, the key elements for developing core messages and for drafting briefs include Messenger, Messaging, Melody Makers, Mapping, and Quality Standards.

Messenger: To be persuasive in brief writing, we promote our case as remarkable and worthy of attention by establishing ourselves as the guide on the journey into the case. The messenger comes before message. That’s why our names appear both at the top of page one and again at the end of the last page with our signatures. We must protect our reputations. If we can’t be trusted, our briefs cannot be trusted.

To be the guiding advocate, we go beyond trustworthiness. We demonstrate our case expertise and our belief in the justness of our case, all the while being professional. We work efficiently to demonstrate virtuous leadership in organized problem solving with attention to accuracy and completeness.

Messaging: To be persuasive in brief writing, we promote our case as remarkable by establishing our core message efficiently and effectively. A core message embraces simplicity. We have something to say. We craft the core message. And we get to the point. Taken together, we prepare to win the battle for the best explanation for this case and for what to do about it.

The first component of the core message is the theory of the case. The theory is our simplest explanation for what happened, why, and what needs to be done now. We find our theory by creating the case chronology, the cast of characters, and the proof chart.

We don’t stop once we have our theory of the case. We build on it by tying it to some universal truth. That truth rises above our case and reveals the larger principle at stake. That universal truth is our theme, and it will help us grab attention and show the injustice crying out for a remedy. Our theme builds our theory into a more powerful message by adding a headline for our story: “This is a case about how actions speak louder than words.” “It takes two to tango.” “Equity aids the vigilant and not those who slumber on their rights.”

We want to boil our theory of the case and our theme down to one paragraph. That’s our 30-second message. In our brief writing, we must have a story to tell. We want to make it meaningful by tying it to the universal theme. And time being of the essence, we want to get to the heart of the matter. That’s what the 30-second message is really about: getting to the heart of the matter. The 30-second message takes the theory of case, adds the headlining theme, and makes our point as efficiently as possible.

Melody Makers: To be persuasive in brief writing, we promote our case as remarkable by making memories on the journey. We start strong and end strong, and we do it over and over again, creating new beginnings and endings. We use repetition purposefully, creatively varying the form and building the intensity. And we impact minds and hearts with striking details and with some show and tell.

The principle of primacy helps us tell our audience why it is important to listen to us. We get attention and keep attention. In real life, we do judge books by their covers, and first impressions really do last. We begin making up our minds as soon as possible. Our first impressions color our thinking.

As the messenger, we can create new beginnings, just like an author can create multiple chapters to build a novel. Each new chapter brings renewed interest. Each new beginning sharpens the focus on our presentation.

The principle of recency helps us create an ending that shows why we asked for the audience’s time, attention, and active listening to all that preceded it. The last impression often is the clearest and the easiest to recall. Summaries of key points remind us of significance. A crisp, clean conclusion will linger in the decision maker’s mind.

We also can create new endings like an author. Each chapter requires a closing, and we create those endings each time we close out a chapter. Every ending presents us with an opportunity to bring an emotional climax to mark that closing.

When we hear things over and over, they leave an impression. The more often we hear something, the more likely we are to understand it. If it’s done artfully, we are not bored or sick of it. In fact, if it’s a good message, we connect with it in a meaningful way.

The key idea here is that when we repeat, we repeat in some slightly different manner. We build upon what came before and make it stronger, hopefully building toward some exciting, powerful conclusion.

We impact memory through vividness. We learn from verbal and visual illustrations. We will understand better and will remember longer when we hear the point and see the point. Our memory is enhanced whenever we experience some show and tell, so we need to consider options for multimedia. We visualize with words, things, and pictures, so we add dramatic emphasis to our verbal points through visualization.

Striking details make an impression on us. We can take advantage of the verbal descriptions that paint pictures in our minds from words themselves. We can use visual illustrations to depict matters of interest graphically. We can combine verbal descriptions with visual illustrations. That is even more powerful-reading words and seeing depictions.

Mapping: To be persuasive in brief writing, we promote our case as remarkable by showing the map for our journey. We use a simple overall structure, something easy to grasp, easy to follow. Our structure is two-sided, telling both the Why Not for our adversary’s theory of the case and the Why for our theory. The adversary’s theory does not work. Our theory works.

There is no one structure that works for all cases, but we strive for a simple one that the audience immediately understands and can follow. One simple way is using two-sided argumentation, the Why Not and the Why Approach: “My adversary has this story, and here’s what is. . . . But here’s the problem and why that theory doesn’t work. . . . So, what’s really happening here? Here’s the truth of the matter. . . . That’s what is really happened here. Our theory works. The truth always works.”

Knowing that one size does not fit all, we can adjust the structure of our two-sided argumentation from case to case. (I included a number of examples in my book, The Essence of Writing Persuasive Trial Briefs: Big Ideas for Mastering Mediation, Arbitration & Trial Briefs.)

Quality Standards: To be persuasive in brief writing, we promote our case as remarkable by reducing distractions and obstacles and by promoting the path toward acceptance of our argument. We eliminate obstacles and pave the path forward in our briefs. We seek to combine logic, flow, and efficiency. We use signposts showing where we’re going, where we’re at, and where we’ve been. And we use show and tell for impact and for easy access to particular parts of our brief.

We promote acceptance of our arguments by adhering to certain quality standards. Consider a recent analysis of the top-brief writers in the country. The analysis was presented by Ross Guberman as The Best Briefs: What AI Can Teach Us about That “Short and to the Point” Feeling, published in 46 Litigation 1 (Summer 2020). That analysis revealed the factors that make the greatest difference in written submissions.

Guberman’s research focused on what the top-rated lawyers did that distinguished their legal briefs as the best. He compiled tens of thousands of pages from the best. Then he took a random sampling of legal briefs written by other lawyers so that he had two huge databases: one from the best and one from the rest. Using artificial intelligence, he analyzed what really made the difference in the written work product.

Based on Guberman’s findings, I offer you these ten takeaways in the form of quality-standard questions.

Top 10 List Of Quality Standards

1. Do I get the law right?
2. Do I show a mastery of the facts (i.e., the record)?
3. Will I meet the deadline for submission?
4. Do I demonstrate internal logic? Massage disparate points into a cohesive whole? Creating order out of chaos? Push the reader forward without needless interruptions?
5. Do I discuss fewer cases for the same points? Intersperse pithy quotes from the cases I do highlight? Synthesize as much of the case law as I can?
6. Do I concede weak points outright?
7. Do I use punchy language? Replace dull verbs with vivid verbs? Strike wordy phrases?
8. Do I use clear, informative headings to make it easier for the reader to find information? Numbered lists for easy access to information? And logical connectors to track the flow of my argument?
9. Do I use visuals for impact and quick access to ideas? Tables, charts, graphs, and other visual aids for complex or technical information? Informative captions and clear, supporting text?
10. Do I revise sentences to express one single, central concept? To get to my point directly and with clarity?

As we noted at the beginning, effective briefs start and end with persuasion. We take aim at both the mind and the heart, showing what is right. All along the way, we simplify. We simplify the problem. We distinguish the necessary and the real from the trivial and the improbable. We probe to find the main roots of our argument and the facts we can stand on.

When we succeed, we promote our case as remarkable, as worthy of attention. We make it easy for our reader to appreciate our argument. And we move the outcome closer to justice for our client.