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Vol. 70, No. 2, February
1997
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."
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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. |
