Advanced Legal Writing : Theories and Strategies in Persuasive Writing

by Smith, Michael R.

• ISBN13: 9780735520141
• ISBN10: 0735520143
• Format: Paperback
• Copyright: 2002-02-01
• Publisher: Wolters Kluwer

Summary

Advanced Legal Writing: Theories and Strategies in Persuasive Writing is exceptionally well suited for use in upper level Legal Writing courses that focus on strategy. the author's distinctive approach: emphasizes persuasive writing strategies and explores specific techniques for legal writers combines theory with practically by taking an interdisciplinary avoids a 'documents-based' approach going beyond the trial or appellate brief to identify effective strategies for a broad range of documents and settings follows a consistent format, offering for each writing strategy: explanation of its nature and characteristics an account of the theoretical principles which explain their effectiveness detailed, 'how-to' guidelines for students to use in their own writing numerous examples of proper use of the strategy and exercises consideration of ethical implications the book is divided into five main parts that cover: literacy allusion and its value in persuasive writing the three basic processes of persuasion: logic and rational argument, emotional argument, and establishing credibility rhetorical style persuasiave writing strategies based on psychology theory the moral implications of being an effective persuasive writer

Table of Contents

Preface	xxi
Acknowledgments	xxiii
Introduction	1	(8)
The Importance of Persuasive Writing to the Practice of Law	1	(1)
Building on Basic Persuasive Writing Skills	2	(1)
Focusing on Specific Persuasive Writing Strategies	2	(1)
Combining Theory with Practicality	3	(1)
Avoiding a Document-Based Approach	3	(1)
There Is No Substitute for Effective Legal Research and Analysis	3	(1)
Judicial Opinions as Examples of Persuasive Writing	4	(1)
A Few Comments About the Exercises in This Book	5	(1)
Learning to Write by Writing About Writing	5	(1)
Exercises Involving the Writing of a Judicial Opinion	6	(1)
Another Benefit: Empowering You as a Sophisticated ``Legal Reader''	6	(3)
Part I The Functions of Literary References in Persuasive Writing: A Multidisciplinary Analysis	9	(66)
Why Start with Literary References?: Discovering the ``Hidden World of Forces'' Underlying Effective Persuasive Writing	12	(1)
Five Effective Uses of Literary References in Persuasive Legal Writing	13	(2)
Literary References for Nonthematic Comparison	15	(24)
Type 1: Literary References for Nonthematic Metaphoric Comparison	15	(15)
The Characteristics of Literary References for Nonthematic Metaphoric Comparison	15	(5)
Identifying and Understanding Literary References for Nonthematic Metaphoric Comparison	20	(1)
Identifying and Understanding Literary References for NonthematicMetaphoric Comparison	20	(1)
The Functions of Literary References for Nonthematic Metaphoric Comparison	20	(4)
Caution and Suggestions Regarding the Use of Literary References for Nomthematic Metaphoric Comparison	24	(6)
Evaluating the Functions and Effectiveness of Literary References for Nonthematic Metaphoric Comparison	30	(1)
Evaluating the Functions and Effectiveness of Literary References for Nonthematic Metaphoric Comparison	30	(1)
Type 2: Literary References for Nonthematic Hyperbole	30	(9)
The Characteristics of Literary References for Nonthematic Hyperbole	30	(4)
Identifying and Understanding Literary References for Nonthematic Hyperbole	34	(1)
Identifying and Understanding Literary References for Nonthematic Hyperbole	34	(1)
The Functions of Literary References for Nonthematic Hyperbole	34	(2)
Cautions and Suggestions Regarding the Use of Literary References for Nonthematic Hyperbole	36	(1)
Evaluating the Functions and Effectiveness of Literary References for Nonthematic Hyperbole	37	(1)
Evaluating the Functions and Effectiveness of Literary References for Nonthematic Hyperbole	37	(2)
Literary References for Borrowed Eloquence	39	(12)
Type 3: Literary References for Direct Borrowed Eloquence	39	(6)
The Characteristics of Literary References for Direct Borrowed Eloquence	39	(4)
The Functions of Literary References for Direct Borrowed Eloquence	43	(1)
Cautions and Suggestions Regarding the Use of Literary References for Direct Borrowed Eloquence	44	(1)
Type 4: Literary References for Creative Variation	45	(6)
The Characteristics of Literary References for Creative Variation	45	(2)
Identifying and Understanding Encoded Literary References	47	(1)
The Functions of Literary References for Creative Variation	48	(1)
Cautions and-Suggestions Regarding the Use of Literary References for Creative Variation	48	(3)
Literary References for Thematic Comparison: Summoning Dreams and Swords	51	(18)
The Characteristics of Literary References for Thematic Comparison	51	(8)
Thematic Literary References to Works Involving Obvious Political or Social Commentary	52	(3)
Understanding the Strategy of Literary References for Thematic Comparison	55	(1)
Writing a Literary Reference for Thematic Comparison	56	(1)
Thematic Literary References for General Societal Values	56	(3)
Identifying and Understanding Thematic Literary References for General Societal Values	59	(1)
Identifying and Understanding Thematic Literary References for General Societal Values	59	(1)
The Functions of Literary References for Thematic Comparison	59	(6)
The Function of Influencing Value Hierarchies	59	(5)
Understanding Now Thematic Literary References Influence Value Hierarchies	64	(1)
Understanding How Thematic Literary References Influence Value Hierarchies	64	(1)
Discursive Psychology Theory and Shared Knowledge: Literary Theory and Intertextuality	64	(1)
Classical Rhetoric Theory: Logos	64	(1)
Classical Rhetoric Theory: Pathos	65	(1)
Classical Rhetoric Theory: Ethos	65	(1)
Cautions and Suggestions Regarding the Use of Thematic Literary References	65	(4)
Thematic Literary References Cannot Overcome Strongly Held Competing Values	65	(1)
The Reader Must Have Read the Referenced Literary Work	66	(1)
Other Cautions and Suggestions	66	(1)
Writing and Analyzing a Literary Reference for Thematic Comparison	67	(1)
Writing and Analyzing a Literary Reference for Thematic Comparison	67	(2)
Final Thoughts on Literary References	69	(6)
Two Ineffective Uses of Literary References in Persuasive Legal Writing	69	(4)
Literary References for Lay Authority	69	(3)
Contrived Literary References	72	(1)
A Single Literary Reference Can Fall into More Than One Category	73	(2)
Identifying and Analyzing Different Types of Literary References	73	(1)
Identifying and Analyzing Different Types of Literary References	74	(1)
Part II Persuasive Writing Strategies Based on Classical Rhetoric Theory: Persuasive Processes	75	(100)
Logos, Pathos, and Ethos in Television Commercials: Understanding Fundamental Persuasive Processes	81	(20)
How Logos, Pathos, and Ethos Operate in Television Commercials	82	(3)
Logos	82	(1)
Pathos	82	(2)
Ethos	84	(1)
Analyzing Some Specific Television Commercials	85	(5)
Snap.com's ``New Friend'' (1999)	85	(2)
Volvo's ``Take My Car, Please'' (1976)	87	(1)
Discover Brokerage's ``The Tow Truck Driver'' (1999)	88	(2)
A Summary of the Persuasive Processes of Logos, Pathos, and Ethos	90	(4)
Analyzing a Television Commercial in Terms of Logos, Pathos, and Ethos	91	(1)
Analyzing a Print Advertisement in Terms of Logos, Pathos, and Ethos	91	(3)
Analyzing a Print Advertisement in Terms of Logos, Pathos, and Ethos	94	(1)
Analyzing the Dominant Persuasive Process in Print Advertisements	94	(1)
Logos, Pathos, and Ethos in Persuasive Legal Writing	94	(7)
Logos	94	(1)
Pathos	95	(4)
Ethos	99	(2)
Ethos in Legal Writing: Character and Good Will	101	(26)
An Introduction to Ethos	101	(2)
The Importance of Ethos to the Persuasive Process	101	(1)
Establishing Credibility Through One's Writing	102	(1)
The Three Components of Ethos: Intelligence, Character, and Good Will	103	(1)
Evincing Good Moral Character in Legal Writing	103	(20)
Evincing Truthfulness	104	(4)
Analyzing the Implications of Ethos on an Appellate Court's Decision	108	(1)
Evincing Candor	108	(4)
Analyzing the Implications of Ethos on an Appellate Court's Decision	112	(2)
Evincing Zeal	114	(2)
Evincing Respect	116	(1)
Evincing Professionalism	117	(5)
A Summary of the Traits Indicating Good Moral Character	122	(1)
Evincing Good Will in Legal Writing	123	(4)
Defining Good Will	123	(1)
Distinguishing Good Will from Character	123	(1)
The Relevance of Good Will to Persuasive Legal Writing	124	(1)
The Paradox Between Pathos and Good Will	124	(2)
Analyzing the Good Will Component of Ethos	126	(1)
Evincing Intelligence in Legal Writing	127	(48)
The Traits of an Intelligent Legal Writer	128	(1)
Two General Means of Evincing Intelligence: Substance and Highlighting	128	(5)
Evincing Intelligence Through Substance	129	(1)
Evincing Intelligence Through Highlighting	129	(4)
Analyzing the Traits of an Intelligent Legal Writer	133	(37)
The Informed Writer	133	(5)
The Writer Adept at Legal Research	138	(3)
Analyzing the Implications of Ethos on an Appellate Court's Decision	141	(1)
The Organized Writer	141	(2)
The Analytical Writer	143	(6)
Analyzing Highlighting Strategies for Establishing that One Is Analytical	149	(1)
Analyzing Highlighting Strategies for Establishing that One Is Analytical	150	(1)
Analyzing Highlighting Strategies for Establishing that One Is Analytical	150	(1)
The Deliberate Writer	151	(4)
The Writer Empathetic Toward the Reader	155	(5)
The Practical Writer	160	(4)
Analyzing How Legal Writer Evinces Practicality	164	(1)
The Articulate Writer	164	(2)
The Eloquent Writer	166	(2)
The Detail-Oriented Writer	168	(2)
The Innovative Writer	170	(1)
Analyzing the Intelligence Trait of Being Innovative	170	(1)
Summary and Conclusion	170	(5)
A Summary of the Traits Indicating Intelligence	170	(2)
Analyzing How a Legal Writer Evinces Intelligence in a Legal Document	172	(1)
Analyzing How a Legal Writer Evinces Intelligence in a Legal Document	172	(1)
Putting It All Together: An Outline of the Components of Logos, Pathos, and Ethos	172	(3)
Part III Persuasive Writing Strategies Based on Classical Rhetoric Theory: Rhetorical Style	175	(78)
The Power of Metaphor and Simile in Persuasive Writing	179	(44)
Defining Metaphor	179	(7)
The Basic Definition of Metaphor	179	(4)
Analyzing a Metaphor	183	(1)
Distinguishing Simile	183	(2)
Analyzing a Simile	185	(1)
Focusing on Original Creative Metaphors	186	(5)
Distinguishing Original Creative Metaphors from Inherent Metaphors	187	(3)
Distinguishing Original Creative Metaphors from Pre-existing Creative Metaphors	190	(1)
The Basic Forms of Creative Metaphors	191	(13)
Metaphoric Sentences	192	(3)
Understanding Pure Metaphoric Sentences	195	(2)
Metaphoric Clauses	197	(1)
Single-Word Metaphors	198	(2)
Extended Metaphors	200	(3)
The Difficulty in Categorizing Different Metaphoric Structures	203	(1)
Understanding the Basic Forms of Metaphor	204	(1)
The Functions of Original Creative Metaphors	204	(3)
The Logos Function	204	(1)
The Pathos Functions	205	(1)
The Ethos Function	206	(1)
The Rhetorical Style Function	206	(1)
Evaluating the Functions of a Metaphor	207	(1)
Cautions and Suggestions Regarding the Use of Metaphors	207	(10)
Overuse of Metaphors	207	(1)
Mixed Metaphors	208	(1)
Understanding Mixed Metaphors	209	(1)
Understanding Mixed Metaphors	209	(1)
Insulting or Offensive Metaphors	209	(1)
Arcane Metaphors	210	(1)
Forced Metaphors	211	(1)
Overly Grand and Trivializing Metaphors	211	(1)
Thematically Inconsistent Metaphors and the Art of ``Internal Allusion''	212	(2)
Inappropriate Tone in Metaphors (Humorous Metaphors)	214	(1)
Extended Metaphors	215	(1)
Labeling Metaphors	216	(1)
Metaphors as ``Enslaving Thought''	216	(1)
Guidelines for Drafting Metaphors	217	(6)
Drafting and Analyzing an Original Creative Metaphor	221	(2)
Beyond Metaphor and Simile: Using Other Figures of Speech in Persuasive Writing	223	(30)
Defining ``Figures of Speech'': Tropes and Schemes	224	(2)
Figures of Speech Effective in Persuasive Legal Writing	226	(27)
The Functions of Figures of Speech in Persuasive Legal Writing	226	(2)
Caution: Do Not Overuse Figures of Speech in Persuasive Legal Writing	228	(1)
Exploring Specific Figures of Speech	228	(23)
Understanding and Analyzing Figures of Speech	251	(1)
Understanding and Analyzing Figures of Speech	251	(1)
Drafting and Analyzing Figures of Speech	252	(1)
Part IV Persuasive Writing Strategies Based on Psychology Theory	253	(58)
The Cognitive Dimensions of Illustrative Narratives in the Communication of Rule-Based Analysis	255	(30)
Communicating Rule-Based Analysis in Legal Writing: The Problem, the Answer, and the Impact	258	(5)
The Problem: The Paradox of Rule-Based Analysis	258	(1)
The Answer: The Cognitive Dimensions of Illustrative Narratives	259	(2)
The Impact: In-Text and Parenthetical Illustrations	261	(2)
The Communicative Functions of Illustrative Narratives	263	(6)
Illustration for Elucidation	263	(1)
Illustration for Elimination	264	(2)
Illustration for Affiliation	266	(2)
Illustration for Accentuation	268	(1)
Understanding the Functions of Illustrative Narratives	269	(1)
Choosing Between In-Text Illustrations and Parenthetical Illustrations	269	(6)
Choosing Among Rule-Based Analysis Techniques	271	(1)
Choosing Among Rule-Based Analysis Techniques	272	(1)
Choosing Among Rule-Based Analysis Techniques	273	(2)
Guidelines for Drafting Parenthetical Illustrative Narratives	275	(10)
Specific Guidelines for Drafting Parenthetical Illustrations	275	(3)
Common Mistakes in Drafting Parenthetical Illustrations	278	(5)
Drafting and Analyzing Illustrative Narratives	283	(1)
Drafting and Analyzing Illustrative Narratives	284	(1)
The Quest for Coherence and the Creation of Factor Tests in Persuasive Legal Writing	285	(26)
Defining a Factor Test	286	(4)
Understanding the Factor Test Rule Structure	290	(1)
Creating a Factor Test: The Process of Induction	290	(8)
Defining Induction	290	(3)
Induction of a Factor Test	293	(5)
Creating a Factor Test Through the Process of Induction	298	(1)
The Communication of Factor Test Analysis	298	(6)
Large-Scale Organization	298	(2)
The ``Umbrella'' Section	300	(1)
The Analysis of Each Separate Factor	300	(1)
Language Indicating the Operative Effect of a Single Factor	301	(1)
The Bottom Line Conclusion	302	(1)
Drafting an Argument Based on a Factor Test	303	(1)
Factor Tests as Persuasive Strategies	304	(7)
The Threshold Question: Should an Advocate Create a Factor Test for a Particular Issue?	304	(1)
The Persuasive Functions of a Newly Created Factor Test: The Human Quest for Coherence	305	(5)
Understanding the Strategic Dimensions of Creating a New Factor Test	310	(1)
Part V The Ethics and Morality of Persuasion	311	(36)
The Ethics and Morality of Persuasion; Justifying the Life of a Professional Advocate	313	(34)
The Criticism: The Lawyer-as-Advocate Is Nothing More Than a Legal Prostitute Who Does Disservice to Client, Society, and Self	313	(5)
Responses to the Criticism Against Professional Advocates	318	(29)
Lawyers as Professional Advocates Use Their Skills Only in Pursuit of Just Causes	318	(2)
On Occasion, Lawyers as Professional Advocates Use Their Skills to Achieve Justice in Individual Cases	320	(1)
A Lawyer Operates Within a Legal Culture that Imposes Constraints on What the Lawyer Can Do in the Pursuit of Victory for a Client	321	(2)
``Role Differentiated Morality'' Insulates Professional Advocates from Criticism for Acting in Ways Consistent with Their Social Role	323	(2)
The Morality of Lawyering Can Only Be Evaluated from Within Its Defining Culture	325	(2)
Truth and Justice Are Achieved Through Adversarial Clash	327	(2)
Professional Legal Advocates Provide Citizens with Access to the Legal System, Thereby Increasing Their Autonomy	329	(2)
Professional Legal Advocates Engage Clients in Moral Conversations, Thereby Helping Them to Grow Morally	331	(2)
Legal Advocates Safeguard Individuals' Rights Against Governmental Encroachment	333	(1)
Lawyers, as Advocates, Maintain and Improve a ``Culture of Argument'' that Makes Available to Society Tools of Argumentation and Persuasion that Can Be Mobilized in the Pursuit of Justice	334	(5)
Maybe the First Response Is Correct After All: Professional Advocates Do Use Their Skills in the Pursuit of Just Causes Only	339	(8)
Appendix A	347	(4)
Appendix B	351	(2)
Index	353