Logic and the legal reader
Carefully crafting your logical path is
the most important thing you can do to persuade the legal
reader.
By Mary Barnard Ray
Most academic disciplines pride themselves on
being logical, rather than intuitive. But if you have struggled through
any social science journals, then you know that what is considered good
logic varies among the disciplines. This column focuses on what is
logical to the legal reader.
From the MailBag...
What is the difference between "i.e." and
"e.g."?
Q: Racine attorney Mark Hinkston asks about the differences between
the signals "i.e." and "e.g." and their appropriate respective uses.
A: The signal "i.e." stands for the Latin phrase "id est," which
means "that is." Thus, "i.e." can be used whenever you mean "that is."
Personally, I have given up using "i.e." because it seems silly to use
Latin when there is such a ready English equivalent.
The abbreviation "e.g." stands for the Latin phrase "exempli gratia"
and has a special use in legal writing as a signal in a citation. Here
is a direct quotation of the explanation in Getting It Right and Getting
It Written, from the entry "Signals."
"E.g., indicates that the cited authority is an example of another
case that states the proposition; this signal also indicates that the
cited authority is among several other authorities that also state the
proposition, but that citing all of them would not be helpful or
necessary. This signal also can be combined with other signals, such as
See, e.g., or But see, e.g."
Legal readers are, by training and experience, sensitive to the exact
language used. In contrast, some philosophers believe that "words are
the clothing of thought, but not the thought itself." But for law and
legal readers, the word is the embodiment of the thought. To label
something as "intent" is to identify that fact's meaning. It is not the
clothing, but the identity. This has tremendous ramifications for legal
writers. Legal writers must choose their words based upon meaning and
accuracy.
Extrapolating this need for accuracy to the next level of writing,
legal writers must ask themselves whether the logical flow of a passage
is accurate. The qualities of elegance, smoothness, conciseness or
persuasiveness are secondary to this one question of accuracy.
Legal writers need to remember that legal readers are trained to
question hypotheses and to look for alternatives, unlike other
professionals who are trained to follow a theme or look for the general
thrust of the argument. Thus, the legal reader, given the slightest
opportunity, will veer off the writer's course of reasoning and follow
his or her own line. For this reason, legal writers must include more
explicit logical transitions from sentence to sentence, paragraph to
paragraph, and issue to issue. At each step of the reasoning, the legal
reader needs to know where the writer is headed, and why. For each bit
of content, the legal reader needs to know why it is there and how it
fits into the step-by-step reasoning that leads to the writer's
conclusion.
For example, our model writer, Ms. Clara Focus, might write the
following passage:
"Just as a homeowner's electrocution was the precise injury
foreseeable due to SDG & E's negligence, a child being hit by a car
while walking home from school was the precise injury foreseeable from
the school district's negligence in not informing parents of the
school's early closing. Three miles is a long way for a child to walk,
especially when alone and when walking home for the first time. Most
people are afraid to allow their young children to cross streets and
walk alone precisely because a car might hit them. A child being hit by
a car, then, is the type of injury that could be foreseen as a result of
the school district's negligence."
But she would never gloss over her logic, as does the following
version:
"Just as a homeowner's electrocution was the precise injury
foreseeable due to SDG & E's negligence, a child being hit by a car
while walking home from school was the precise injury foreseeable from
the school district's negligence in not informing parents of the
school's early closing. Tommy's being hit by a car then is the type of
injury that could be foreseen as a result of the district's
negligence."
In summary, carefully crafting your logical path is the most
important thing you can do to persuade the legal reader. Strong
verbiage, superficial factual similarities and elegant bluster will not
impress the savvy legal reader. The legal reader wants a clear logical
path to your conclusion.
Of course, the legal reader - at least it is rumored - does have a
heart. And any human is more thoroughly persuaded if the heart agrees
with the head. So the trick, for the legal writer, is to weave in the
emotional persuasion while maintaining a tight and clear logical
progression. That is the topic of a future column.
Mary Barnard Ray is a
legal writing lecturer and director of the Legal Writing Individualized
Instruction Services at the U.W. Law School. She has taught writing
workshops and offered individual sessions for law students; she also
taught advanced writing and commenting and conferencing techniques in
the training course for the legal writing teaching assistants. She has
taught and spoken nationally at many seminars and conferences of legal
and college writing instructors. Her publications include two coauthored
legal writing books, Getting It Right and Getting It Written and Beyond
the Basics, published by West Publishing Co.
If you have a writing problem that you can't resolve, send your
question to Ms. Ray, c/o Wisconsin Lawyer, State Bar of Wisconsin, P.O.
Box 7158, Madison, WI 53707-7158. Or, email your question. Your
question and Ms. Ray's response will be published in this column.
Readers who object to their names being mentioned should state so in
their letters.
Wisconsin
Lawyer
