Real Property Law

Persuasive Writing: Outlining Your Argument

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By Michael J. Simkin, Esq.

All legal writing is persuasive writing. Whether drafting a lawsuit, communicating with opposing counsel, or discussing strategies with a client, a lawyer’s writing must convince someone of something. A lawyer’s tools are the words, phrases, and sentence structure used to persuade a reader to reach the desired conclusion.  

Of the many definitions of persuasion, two stand out. The first; persuasion is the act of persuading. The second; persuasion is a belief held with complete assurance. These definitions complement each other. Merely making the reader consider your opinion is not enough. To be persuasive, you must convince someone to change their beliefs and embrace your position.  

Making a Game Plan 

All persuasive writing begins with a game plan. You must: 

  1. Know what you want the reader to do. 
    • Whether it be to see your side of the argument, give you information, or to settle a dispute, you must have a solid understanding of what you want to achieve before you begin your persuasive writing. 
    • Have a clear understanding of your goal to help you outline a clear argument.  
    • Have a theme and be consistent. 
  2. Understand what motivates the reader. 
    • Understand their motivations to help you decide how to phrase the argument.  
      • Example: Two neighbors on the top and bottom of a hill have had grudges between them for many years concerning inconsequential issues. However, the downslope owner needs cooperation from the other to add a retaining wall to prevent damage to her property. If representing the downslope owner, point out how consent to add a retaining wall will prevent possible liability to the upslope owner.  
    • The identity and role of your reader impacts what motivates them. The way you communicate with a client differs from opposing counsel. Be mindful of the recipient’s life, business experiences, and perception.  
      • Example, if sending a demand letter to an unrepresented party, stress that you seek an amicable resolution and provide a solution. This should open communications and if the opposing party retains a lawyer, lead them to find a compromise without litigation.   
    • If you are speaking to a lawyer who is emotionally or personally involved with the case, it may be more difficult to convince them of your position. How you phrase your goal may be more important than the reasons supporting it.  Focus on the desired result and why that benefits all parties.  
  3. Clarify the reader’s benefits. 
    • Whenever possible, frame your goal as mutually beneficial. Use positive language that prioritizes the benefits to the opposing side. 
    • “If you wish to win a man over to your ideas, first make him your friend.”—Abraham Lincoln 
      • Do not lie or use misleading information. Stick to outcomes that you know are possible.  The reader’s trust in you and your argument for a particular result is critical. “Character may almost be called the most effective means of persuasion.”–– Aristotle 
  4. Consider the organization of your arguments on the page. 
    • Maintain an awareness of how information is presented on the page. Large paragraphs may be tiring for the reader and cause the reader to skip over content you want conveyed.   
    • Understand how varying the physical placement of information in a paragraph impacts how a reader reacts or interprets your argument. 
    • Please refer to the eNews article, Persuasive Writing: Paragraphing for Lawyers article written by Michael Simkin, for more information on paragraphing. 
    • This applies to general tonal shifts between positive to negative language.  
      • Use of positive phrases encourages the reader to consider what you wrote and not close their eyes to what you are saying.  
      • An email that begins with a negative statement and ends with a positive may cause the reader to skip to the end and not consider your argument.  
      • Example: “My client is not liable and refuses to pay. [Followed by three paragraphs of antagonistic discussion].” Even if you conclude your letter with “however, my client proposes to ….” the conciliatory phrase may be overlooked by the reader because once he sees the negative, self-serving, aggression in your letter, the reader may stop reading and conclude there is no resolution. 
      • When the tone is only negative, there is no persuasion. “Don’t raise your voice, improve your argument.”— Desmond Tutu. 
      •  Begin your paragraph with a positive statement such as “We should be able to resolve the problem, but will your client consider …” Or “Mediation would be beneficial, but can we informally obtain a copy of ….”  As opposed to “We must obtain our discovery before considering a settlement proposal.” 
  5. Anticipate the Opposition’s Position. 
    • You need to consider opposing positions throughout your handling of the file. “One of the best ways to persuade others is with your ears—by listening to them.” — Dean Rusk  Be objective, even if the opposition’s written tone is aggressive. Tit for tat does not win cases. Antagonistic verbiage is not persuasive. Respond with analytical writing that draws a conclusion supported by law or facts.    
    • Do not evade a good argument by the opposition. Rather, provide an alternative solution.  
    • Understand that your readers are operating with a different mindset. That is why you need to persuade them. It is okay if they initially object
    • Decide what you are willing to compromise on. Proposing a compromise can make it easier for the reader to side with you. If you are considering a compromise, keep your original goal in mind and be aware of which parts are important to maintain. 

Persuasive Appeals 

Everyone believes something for a reason. To persuade someone of your opinion, consider why they may hold that opinion so you know how to change it. A successful persuasive communication may appeal to: 

  1. Reason 
    • Consider your issue and the common-sense elements that may be involved. 
    • Make sure your writing doesn’t contain any logical inconsistencies or fallacies
  2. Emotion 
    • Emotions run high during legal proceedings. Anger, dread, sadness, exhaustion—these are all reasons why a reader may think what they do.  
    • Consider how your goal may or may not align with their emotions and how a change of phrasing or tone can better address their emotions. 
  3. Fact 
    • Utilizing fact is one of the best tools in persuasive writing. Truth makes your argument stronger and easier to side with. 
    • Some facts to include: Facts of the case, photos, direct quotes from correspondence or other materials, an accurate representation of the case thus far, laws, specific names/dates/locations, etc. 
    • Law is only an outline. Courts look to the facts to distinguish application of law. The old adage, “if the facts are on your side, hammer on the facts; if the law is on your side, hammer on the law…”, is true to a point. However, the fulcrum is the facts. The facts tip the scale every time.   
      • Your writing should include citations to applicable law or favorable facts.   

Sample Persuasive Outline 

Successful persuasive writing can vary widely in layout as it depends on intention, tone, and audience. Below is one sample outline based on the IRAC method. 

Issue -> Summarize the problem. 

  • Include facts to build a compelling story. 

Rule -> Explain how the problem can be legally solved. 

  • Use specific and applicable laws. Highlight the way they apply to your case. 
    • Citations aid your credibility, so include them whenever possible. 

Analysis -> Anticipate Possible Objections. 

  • Objections can and will come. Think about the possible problems with your pitch and work to patch those.  
  • Perhaps include additional law that makes their objections invalid. You can directly address their objections as to make it absolutely clear that you’ve fully thought the issue out. 

Conclusion -> Ask for a specific action. 

  • The sum of all previous sections should be your action. What specific thing do you want the person to do.  
  • The more specific, the better. Broad requests make it easier for someone to misinterpret what you want or object to it. 

Compliance Techniques 

If dealing with a tricky reader, you may want to utilize a compliance technique. Compliance techniques are psychological methods of persuasion. Some include: 

Foot-In-The-Door: Ask a smaller request first, then a larger one. The person may be more willing to perform as they feel they’ve already done one thing, so they might as well do another. This is an example of sequential compliance.  

Door-In-The-Face/Lowball: You make a very big request first then make a smaller one. The smaller one (which has been your goal all along) will seem much more reasonable, making the reader more likely to act. This is another example of sequential compliance. However, this technique may backfire and prolong the process. 

Ingratiation: Ingratiation works by making you seem familiar or amiable with the reader. You can use a variety of techniques for this including flattery, agreement (agreeing with them on a variety of topics), self-presentation (presenting yourself in line with their ideals), helping them, and more. 

Blame a Third Party: Blaming someone not present, a supervisor or party not directly involved shifts the roadblock. An example is, “it’s not me, it’s my wife”, or “the insurance adjuster is the problem not us”.    

Further Reading: 

This document by Georgetown University Law School’s Writing Center highlights many elements of persuasive legal writing and includes many examples. 

This article by Ted Pelletier for Plaintiff Magazine explains how persuasive writing involves guiding the reader. 

This PowerPoint by Legal Services of Central New York takes you through the steps of persuasive writing. 

This document by Indiana University Law School gives overall tips to legal writing, including a description of good and bad writing. 

This document by University of Minnesota Libraries explains what persuasion is. 

In Chapter Nine Communicating for Results: A Canadian Student’s Guide explains persuasive writing techniques. While the textbook is not free, free resources are available online. 

This document by North Carolina Appellate Advocacy Training goes in great detail about persuasive legal writing techniques. 

Bio of Michael J. Simkin, Esq.  Admitted in California, New York and the Law Society of Ontario Canada

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