Commandment #4--Rhetoricals, Hypotheticals, and Artificial Emphasis

Commandment #4—Thou shalt think twice before employing devices such as rhetorical questions, hypotheticals, artificial emphasis, and exclamation points.

This commandment is a catch-all for several different, often ineffective techniques lawyers use.

Rhetorical questions

 

Lawyers should generally avoid asking rhetorical questions in their briefs. As one court noted, "[r]hetorical questions do not an issue make." Hartford Cas. Ins. Co. v. Jenkins, No. 09-05214-WS-M, 2010 WL 2348619, at *4 n.6 (S.D. Ala. June 9, 2010). Consider whether this sentence could add anything to a brief:

 

Based on these cases, can anyone question whether Plaintiff has stated a claim for negligence?

 

That sentence doesn't serve any purpose. The writer is essentially asking the reader to perform the analysis. Instead, this writer should spend brief space performing a strong analysis and showing the reader how and why the cases cited apply.

 

Questions can be effective in limited situations, however. Suppose you are arguing that a statute is unconstitutionally vague and doesn't provide fair notice of what conduct is illegal. You might pose questions to show that the statute is vague--questions the statute doesn't answer. For example:

 

The statute prohibits the possession of "child pornography" but does not define that term. What constitutes child pornography? Even if a reasonable person would interpret the term "child pornography" to include materials depicting children engaging in sex acts, the statute is silent about the situation here--where the defendant merely possessed a handful of photos of naked or semi-naked children.

 

Does a new mother violate the statute by possessing photos of her naked, newborn child? Would the statute allow the State to prosecute a father who keeps a picture of his son's first bath? The statute does not answer these questions.

 

Most of the time, however, questions posed in briefs just waste space. Think about whether a question—rhetorical or otherwise—will add anything to your brief before including it. 

Hypotheticals

Like rhetorical questions, posing hypothetical situations is often ineffective too. Every once in a while, a writer will find a really good, strong hypothetical. But most fall flat. Unless a hypothetical is dead-on, it will probably do nothing but detract the reader from the case at hand. Remember, courts decide actual controversies, not potential ones. Generally, you shouldn't waste precious space on hypotheticals--use the pages you have to address the pending case.  

Artificial emphasis*

Good writers use their language and sentence structure to make their points and don’t rely on artificial devices such as bolding, underlining, italicizing, or capitalizing. That’s not to say these devices should never be used—I think they should be, with the exception of ALL CAPS. In my mind, capitals should never be used to provide emphasis (see what I did there).

You should bold, underline, and italicize sparingly; you should never use these devices in conjunction with each other; and you should never use them for more than a few words at a time. Here’s a good example of underlining for emphasis:

To constitute an “automobile” under the policy, the vehicle must be (1) self-propelled; (2) have at least four wheels; (3) weigh less than 12,000 pounds; and (4) have been “designed principally for use on public roadways.” The parties do not dispute that the golf cart has four wheels, is self-propelled, and weighs less than 12,000 pounds.

Defendants’ argue that the golf cart is an “automobile” because they have driven it on the roadways of the community in which they live. Pretermitting the issue of whether the roads in Defendants’ private, gated subdivision are “public roads,” Defendants have failed to offer an evidence that the golf cart was “designed principally for use on public roadways.” Defendants’ evidence shows only that they used the golf cart on public roads. Defendants offer no evidence that the manufacturer of the golf cart designed the golf cart for use on public roads.

Compare that passage with this one:

Defendants’ argue that the golf cart is an “automobile” because they have driven it on the roadways of the community in which they live. Pretermitting the issue of whether the roads in Defendants’ private, gated subdivision are “public roads,” Defendants have failed to offer an evidence that the golf cart was “designed principally for use on public roads.” Defendants’ evidence shows only that they used the golf cart on public roads. Defendants offer no evidence that the manufacturer of the golf cart designed the golf cart for use on public roads.

Do you see the difference? Underlining the entire sentence takes away from—rather than highlights—the important distinction between “use” and “design.” And underlining and bolding the sentence gives the reader the impression you are yelling—it’s off-putting, not persuasive. Short, isolated uses of artificial emphasis can have a big impact. But these techniques should be used carefully and only for the most important points.

Exclamation points

Someone—I believe F. Scott Fitzgerald—once said that using an exclamation point is like laughing at your own joke. And it’s true. In my opinion, exclamation points have very limited use in professional writing. You should include an exclamation point when you are quoting another document or record that contains the exclamation point, such as an email between the parties. You should also, of course, include any exclamation point contained in the original text of any case you cite. Other than those two situations, you should avoid exclamation points in your legal writing—let your words do the talking instead.

 

*The use of artificial emphasis is a sticking point among legal writing professionals. Some say these techniques should never be used; other disagree. I employ these techniques myself from time to time, and I've noticed that many of the nation's top advocates and judges use them quite effectively. So, I think it's unfair to say they should never be used. But they must be used sparingly. Otherwise, you become the writer who cried wolf, and the emphasis loses all effectiveness.