The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Forgotten Persuasion

We write to persuade, but how do we overcome the reader's memory constraints?


You've completed your masterful brief, a 50-page model of persuasion. Now a sobering moment of reflection: How much of this eloquence will the judge remember? After all, judges are only human and we humans forget much of what we read—not just the words but also the concepts. Like every advocate, you want the judge to remember the concepts critical to your argument.

Consider how people in other fields try to persuade. Advertisers spend millions trying to set their product apart so that we'll remember it. Though the product may seem irresistible, the advertiser has flubbed if we forget the message.

The same is true of an advocate's message. Though your advocacy may be eloquent, it is wasted unless remembered. Think about how masterful communicators have created memorable sentences, using alliteration, metaphor, simile, and rhyme to ensure that readers will remember particular points. We call these memorable sentences "aphorisms."

Consider Chief Justice Roberts's opinion condemning an expert witness's consideration of the defendant's race as a risk factor for recidivism:

There were only "two references to race in [the expert witness's] testimony"—one during direct examination, the other on cross. But when a jury hears expert testimony that expressly makes a defendant's race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupied in the record.

Buck v. Davis, 137 S. Ct. 759, 777 (2017). With this explanation, the Chief Justice closed with an aphorism, crystallizing a key point through alliteration and metaphor: "Some toxins can be deadly in small doses." Id.

Justice Kagan also used metaphor to create a vivid image when dissenting in American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 252-53 (2013) (Kagan, J., dissenting). There Justice Kagan argued that the majority had miscast the issue as one involving the suitability of class certification:

The Court today mistakes what this case is about. To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled. So the Court does not consider that [the petitioners'] agreement bars not just class actions, but "other forms of cost-sharing … that could provide effective vindication."

570 U.S. at 252–53 (italics added).

Both aphorisms pack the argument into a concise sentence, creating an image easily recalled and readily linked to the writer's key point. You needn't aspire to the rhetorical heights of wordsmiths like John Roberts or Elena Kagan, but you can use metaphor, simile, alliteration, rhyme—and other tools in your rhetorical toolbox—to create durable images for points of special emphasis.