legal writing

Thanks to Raymond Ward’s the (new) legal writer here is an article about brief (motions?) writing.

Prof. Ken Chestek of the Indiana University School of Law recently conducted a study, trying to determine empirically whether a brief with an element of storytelling is more persuasive or less persuasive than a purely logical, law-driven brief.

He published the results of his study in an article that you can download here. Although (as Prof. Chestek acknowledges) the sample size may be too small to draw definitive conclusions, the study’s results suggest that storytelling makes for a more persuasive brief.

Here is the abstract.

Journal of the Association of Legal Writing Directors, Vol. 7, No. 1, 2010 Abstract: This article focuses on the question of whether appellate judges are actually influenced by the stories of the litigants who appear before them. Part I will describe what I call the “DNA model of persuasion,” setting forth the hypothesis that logical argumentation, while a necessary part of persuasion, is not sufficient by itself and that using the form of a story to weave a pathos-based appeal into a brief will produce a more persuasive document. Part II of this article will describe a study that I devised and implemented to test whether appellate judges find story argumentation persuasive; Part III will present the results of the study. Part IV addresses possible objections to the validity of the test and the sample collected. Part V will begin an analysis of what the data might mean. Among other things, I conclude that stories are indeed persuasive to appellate judges and others, but also that recent law school graduates are not as impressed by stories as more experienced lawyers (and judges) are. Finally, I suggest that stories are helpful because, properly done, they evoke emotional responses within the reader that make the legal claim seem more “real,” and hence believable, to the reader.