Good legal writing — and successful legal advocacy in general — is more than just presenting facts and law. It’s about telling your client’s story in a compelling, emotionally engaging manner that ultimately persuades the judge or jury to view the facts and law from your client’s perspective.
In this way, good legal writing is not too different from good fiction writing. In both genres, the writer must tell a story that captures and holds the reader’s attention and that convinces the reader to accept a favored point of view. But legal writers too often ignore (or fail to notice) the lessons great fiction can teach, and instead use unattractive, non-engaging legalese.
One way that attorneys too often handicap their own cause is by resorting to the regular use of the sterile, dull nouns “Plaintiff” and “Defendant.” Instead, lawyers should use proper names when referring to favorable clients, parties, and witnesses in their legal writing.
For example, consider this sentence: “Defendant struck Plaintiff with Defendant’s truck squarely within the crosswalk after running the red light.” If I am advocating for the person hit by the truck driver, then I’ve done myself no favors by referring to her as “Plaintiff,” which evokes no emotional meaning for the reader; the reader can too easily skim the sentence without consuming its content. “Plaintiff” is detached; it is an emotionless word.
Now consider this sentence: “Mr. Robertson struck Ms. Sampson with his Toyota pickup truck squarely within the crosswalk after he raced through the red light.” This is better than the first version because it paints for the reader a real-life situation: the name “Ms. Sampson” is easily associated with real, human qualities that a reader can identify; the sentence uses words that personalize and make Ms. Sampson real — thus making it easier to sympathize with, and be emotionally drawn to, her tragedy.
The same is true for legal entities: instead of writing “Company signed the contract under false pretenses,” an attorney should write “Sullivan’s Hardware, through its agent Mr. Jackson, signed the contract based on what later were revealed as lies.” Again, a reader will be far more interested to learn about “Sullivan’s Hardware” than “Company.”
By the same token, there are times when it might be advantageous to dehumanize an adverse party. If, for example, I represent Ms. Sampson in the above example, it might benefit my position to emotionally distance my reader from Mr. Robertson by referring to him as “Defendant,” thus making a decision against him easier. And arguably, there are matters in which designating labels, instead of using proper names, may be advantageous.
For example, if I am asking a court to grant relief to 5 members of the Robinson family in a contract dispute with a local business, it’s better that I refer to my clients as “the Robinson Family” and that I refer to the business as the more sterile noun, “Business.” Alternatively, if I am representing the business in the same case, I might refer to the business as “Henderson’s Hardware” and the Robinsons as “Plaintiffs.” Both examples maintain the ease and clarity of a label while also evoking an emotional response in the decision-maker that supports my client’s case.
I am not advocating here that legal writers adopt a wholly new, entirely different means of presenting a client’s story. In fact, as I’ve written elsewhere in NWSidebar, there is great benefit to conforming your legal writing squarely to the IRAC model, and no amount of creativity will compensate for poor research or a failure to grasp the facts of a case. But what I am arguing is that, even within our profession’s legal norms, an attorney must always utilize imaginative sentences and must always tell an engaging story; using “Defendant” and “Plaintiff” more often than not offends that responsibility.
Ernest Hemmingway urged that when writing fiction, “a writer should create living people; people, not characters. A character is a caricature.” I urge that the legal profession adopt a similar approach when writing about the clients we represent. After all, as attorneys, we advocate for real people, not mere characters.