What Did You Just Say?

Repetition to be remembered.

|The Volokh Conspiracy |

Persuasion is possible only if we're understood, which in turn is possible only if readers remember what we've said. There lies the challenge of legal writing: Most of what we write is quickly forgotten, so we want to foster memory of our critical points.

How are we to do that?

Dr. Samuel Johnson supplied a clue: "The true art of memory is the art of attention." To figure out how to command attention, consider the great literary and rhetorical figures from our past, as they repeated clauses (called "anaphora") or sounds (called "alliteration").

In his memorable opening to A Tale of Two Cities, Charles Dickens used anaphora to quickly capture the reader's attention:

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair.

Rhetorical masters have also used anaphora to attract attention to particular passages. Consider Winston Churchill's memorable oratory, underscoring the doggedness with which British forces would pursue their enemy in the Second World War:

We shall not flag or fail. We shall go on to the end. We shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills. We shall never surrender.

Like the repetition of words, the repetition of sounds can draw attention to key passages, fostering recall. Oliver Wendell Holmes Jr. used alliteration to repeat the "l" sound in his opening to The Common Law: "The life of the law has not been logic: it has been experience." Or consider the argument by David Boies and Ted Olson as they used alliteration to highlight the harm to gay couples' inability to marry: "Each day Plaintiffs' rights to marry are denied is a day that can never be returned to them—a wrong that can never be remedied."

Overuse of anaphora or alliteration can appear contrived or distracting, so use these techniques sparingly and only when you want to draw readers to a specific idea. They'll undoubtedly forget much of what you've said because our memories quickly reach overload, dumping information to make room for new information. To persuade, your goal is rather modest: You want readers to remember the critical elements of your argument. The repetition of words and sounds will foster their memory of particular passages by attracting the readers' attention.

NEXT: Today in Supreme Court History: May 20, 1996

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  1. Ah, the memories. This takes me straight back to my writing and rhetoric days. Thank you for an excellently written article.

    That being said, I ended up changing my major (to German) because assignments like “interpret Shakespeare’s The Tempest from a postcolonial, third-wave-feminism perspective” were destroying my love of literature. I wanted to learn more about what Shakespeare was trying to say, about the culture in which his works arose, about what his art said about the people of his time, than our retrospective reworkings of what he was trying to say.

    1. I learned to despise English teachers and their analysis in high school, I think, when we spent an inordinate amount of time over-analyzing poetry; Robert Frost’s “miles to go before I sleep” poem was the last straw. I used to like poetry of all sorts just for the rhythm, the imagery, the words themselves, but she ruined it. No doubt all sorts of poetry has all sorts of deeper meanings, but if it isn’t obvious, so what? Let it come on its own. Sometimes a poem must be perceived as just a poem, and left to itself before the deeper meaning arises, if ever. And if someone never grasps the deeper meaning, so what?

      1. This reminds me of my favorite English teacher. She of course would love to analyze literature, symbolism, and its relationship to various philosophical movements. But one day we were doing presentations on different poems of the Romantic period. So I went on this whole spiel about how the moon in this poem was a metaphor for something or other. And she said something to the effect that there probably isn’t really any deeper meaning, it’s just some nice imagery. This of course is one of the main themes of the Romantic movement.

        Sometimes the beautiful imagery and sounds are actually the point of the poem, and if you look for something deeper you’re actually missing the point.

        1. On the other hand . . .

          A friend of mine in law school, who had made something of a name for himself as a short story writer, quit law review because it was ruining his writing style.

          1. I had a hard time figuring out why so many of the new prosecutors in our office spoke so woodenly in court. John McWhorter’s description of “speaking like writing” (https://www.ted.com/talks/john_mcwhorter_txtng_is_killing_language_jk/transcript?language=en) was a revelation. All these young, charismatic attorneys had been trained to communicate in an exceedingly boring manner in a legal environment.

  2. This is great advice – if I’m writing a novel or preparing a speech à la
    Churchill or Reagan, but what does it have to do with Judge Bacharach’s guest-blogging about legal writing?

    1. You deliberately posted that comment?

    2. Classical figures of speech can be highly effective in legal writing (and legal oral advocacy). I’m not sure that this rather cursory treatment offers much practical guidance for how to do that, but i agree that lawyers would do well to explore the topic.

  3. It is most emphatically the province
    Of a robed and wigged eminence
    To phrase the law’s empiric
    In desultory lyric
    And to rhyme the sentence capital
    With leys and longeurs pastoral.

    Mr. D.

    1. Is this original? If so, congrats!

      1. Listen to enough G&S when writing, and the doggerel just happens. The Long 19th Century might still be going on in places.

        Mr. D.

  4. So that’s why The Prodigy keeps repeating the same words over and over in their songs.

  5. Overuse of anaphora or alliteration can appear contrived or distracting, so use these techniques sparingly and only when you want to draw readers to a specific idea.

    The big problem that lawyers have is issue selection- i.e., knowing what is truly important. We are so fearful of waiver that our tendency is to include everything and then overemphasize everything. (Plus, major briefs are often team efforts with every lawyer attached to their own argument and opposing any deemphasis of it.)

    Repetition, like emphasis, ONLY works if you use it on only your key points. And that requires the lawyer to identify what the key points actually are.

    1. One of the difficulties trial-court lawyers face is that they *must* include every potential legal argument, due to the fear of an edited-out issue being deemed waived by appellate courts. I always sort of thought a perfect trial-court brief would focus on, say, the 4 best arguments, with a dropped footnote, listing the other 20 issues, and a comment that these 20 issues are being included to preserve the right to argue them in an appeal. *

      * Only partly joking. I never have had to guts to do this myself.

      1. You have to preserve issues, but that begs the question, which is what issues are worth preserving.

        Waiver is only important if you are waiving something that might win. Now I get that trial lawyers have it worst- they can’t always make these judgments on the fly- but all written documents making multiple arguments have to do some amount of issue selection. And massive issue triage is often necessary on appeal.

  6. It also helps to write something worth reading. Just sayin’.

  7. Have no opinion on Boris Johnson as PM, but there’s a brilliant 5 minute clip of him expounding on Churchill’s rhetoric including the we shall fight … selection.

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