The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As legal writers, we tell stories—stories about laws, about cases, and about people. As we transition from story to story, we must take the readers with us. As they move among the stories, they need help in seeing how the stories intersect. It's our job to show readers how the stories fit together.
The intersections take place at the granular level, as we link clauses in a sentence. And these intersections take place at a broader level, as we link sentences and paragraphs. But in linking sentences and paragraphs, we need to think about how our readers will process what they read. If we don't, readers may lose how our various arguments fit together.
But how do I know how you'll react to language? This has long been the challenge for legal writers, but today's advocates enjoy an untapped resource: the work of psycholinguists, who have spent thousands of hours studying how people read and process information.
From these studies, psycholinguists tell us that readers tend to relate new material to what they already know, expecting the start of a sentence to link to the prior sentence. This tendency leads most readers to process familiar information before new information. So it's sometimes jarring to move directly between new pieces of information, masking how the information interrelates.
To ease the reader's burden, show the interrelationship by conveying old information before new information. You can easily do so by referring to the key part of the prior sentence before expressing the new content of the sentence.
Rhetorical masters like President Franklin D. Roosevelt used this technique. Consider his first inaugural address, as he addressed a nation consumed by the Great Depression. In introducing himself as the newly elected president, he focused on creating new jobs. As you read an excerpt from this speech, think about how President Roosevelt uses transitions to advance his point, incorporating parts of what he has just said:
Our greatest primary task is to put people to work. This is no unsolvable problem if we face it wisely and courageously. It can be accomplished in part by direct recruiting by the government itself, treating the task as we would treat the emergency of a war, but at the same time, through this employment, accomplishing greatly needed projects to stimulate and reorganize the use of our natural resources.
Hand in hand with this we must frankly recognize the overbalance of population in our industrial centers and, by engaging on a national scale in a redistribution, endeavor to provide a better use of the land for those best fitted for the land. The task can be helped by definite efforts to raise the values of agricultural products and with this the power to purchase the output of our cities. It can be helped by preventing realistically the tragedy of the growing loss through foreclosure of our small homes and our farms. It can be helped by insistence that the federal, state, and local governments act forthwith on the demand that their cost be drastically reduced. It can be helped by national planning for and supervision of all forms of transportation and of communications and of all forms of transportation and of communications and other utilities which have a definitely public character.
President Roosevelt puts "old information" before "new information," easing the burden for his listeners to understand how the new content relates to what he's already said.
Of course, sometimes you may want to jar readers, forcing them to focus on a particular point. Pratik Shah illustrates the value of jarring the reader with this passage in a brief: "Fool me once, shame on you; fool me twice, shame on me. In this case, South Carolina, following the lead of other state and federal regulators, has added a new twist to that old saying: fool no one, pay $124 million to the treasury." The italicized words constitute the old information, referring to the prior sentence. Until readers get to the italicized language, they will not know what to expect. But this withholding of information is what the writer wants: The veil drops when readers get to the italicized language, intensifying the impact of the $124 million fine when the client hadn't deceived anyone.
So as you move the reader from story to story, think about how these stories intersect and how you want the reader to move between these stories. Do you want the reader to breeze easily through your prose, instantly seeing how each new bit of information relates to the old? Or do you want to occasionally zap the reader? Above all, think out how your stories intersect and brandish those intersections for your reader.
[UPDATE: I accidentally posted this under my name at first, but it's Judge Bacharach's post; I've revised the byline accordingly. -EV]