Empathy Reform in Legal Writing

Lawyers must start acting less lawyerly when they write. Lawyers should instead seek to imagine the most charitable version of the other party’s interests and how they would feel when reading our writing. We should tune our ethical imaginations to the likely emotional responses of both the other lawyer and client to whom we write. In other words, we seek a kind of “empathy reform” in our legal writing, the quality of understanding and sharing the feelings of another. We reflect back to our audience their feelings, not ours.

Some might argue that empathy reform in legal writing threatens our duty of loyalty or advocacy to the client. It does not. It fosters the opposite. Empathy makes us better advocates. Empathy is another way of reminding us to simultaneously “know our audience” and the other side of the argument. Both are hallmarks of effective advocacy. Empathy helps us understand what motivates and drives the other parties in any legal transaction or conflict. Only through such understanding can we hope to resolve the conflict or transaction on emotionally satisfying terms, in addition to legal, factual or financial ones. And it is the emotional dimension that most often undergirds the possibility of repair in human relations. 

As we apply this mindset to our legal writing, we might begin our next email, letter or brief by stating the most favorable version of the other party’s emotions. Let’s be as charitable as possible. Let’s attribute good faith, good will and good meaning to the other side. Let’s place ourselves in their emotional space. Consider beginning with, “You are right to feel . . .” or “I understand your feeling of . . .” or similar expressions of sincere, well-considered empathy. We can also describe what feelings animate our own writing or the emotional valence of our client, not as a perch from which to preach our moral or legal rectitude, but as an invitation to mutual empathy. Nothing further should be said until we’re clear on how each sides feels. We should of course still advocate, argue and debate in our writing as needed, among the other reasons we write as lawyers. Only now we do so from the perspective that invites all sides to understanding even while they might disagree. We thereby presuppose the conditions to give and receive empathy.

Legal Writing – Theme is Heart of Your Writing

As “literary lawyers” who learn from the best fiction and nonfiction writing techniques, we should keep in mind the lively importance of theme in our writing. This recent law-lit piece delves deeper into the meaning of theme and how to develop meaningful themes in your legal writing: theme heart of legal writing

Law-Lit’s Mission: Imagination, Emotion, Story

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  1. We revive our moral imaginations and intellectual empathy to compliment legal reason as a path to solving law’s problems.
  2. We engage our emotional and intuitive faculties as foundations for sound judgments in law.
  3. We discover storytelling, along with fiction and nonfiction techniques, as routes to understanding law and better writing in the legal profession.
  4. We aim to become more adept with stories, reading, and writing to enhance communication and persuasion.
  5. We seek to ethically attune ourselves to the rewards and challenges of a fulfilling career – if not a calling – in the law.

Write with Style

Scholar Helen Sword studied as many writing guides as she could lay her eyes on. She saw six points of unanimous advice:

1. Clarity, Coherence, Concision: write sentences that are clear, coherent, and concise.

2. Short or Mixed-Length Sentences: write short sentences or vary sentence rhythm with alternating short and long sentences.

3. Plain English: avoid ornate, pompous, Latinate, and waffly prose.

4. Precision: avoid vagueness and imprecision.

5. Active verbs: active verbs should dominate your writing; use passive verb constructions sparingly.

6. Tell a story: create a compelling narrative.

On drafting sentences, in particular, she offers three guiding principles:

1. Employ plenty of concrete nouns and active verbs, especially when writing about abstract concepts.

2. Keep the nouns and verbs close together in your sentences, so that readers know “who’s kicking whom.” In other words, keep the actor and the action close together; express the crucial actions in verbs and the central characters (real or abstract) in subjects.

3. Avoid clutter: keep your sentences free from extraneous words and phrases.

How to put these principles regularly in play? Sword offers help here too.

1. Check the health of your sentences by pasting them to http://www.writersdiet.com. The “WritersDiet” test will categorize your sentences as “flabby” or “fit.”

2. Replace at least a few “be” verbs (be, been, is, are) with active verbs.

3. Identify your passive constructions and decide whether they add syntactical variety or offer other justification for inclusion. Too many passive phrases wilt the sentence.

4. Make sure at least one sentence per paragraph contains a concrete noun or human entity as its subject, immediately followed by an active verb.

5. A noun and its accompanying verb should pack a quick, one-two punch. Readers lose interest when more than a dozen or so words separate the actor (subject or noun) from the action (verb).

6. When writing about inanimate abstractions, still use active verbs to “animate” them.

7. Cut down on prepositional phrases, especially when they string together long sentence with abstract nouns.

8. When possible, explain abstract concepts using concrete examples (which, for brevity’s sake, I’ve violated in this very blog post!)

As many writers before Ms. Sword have pointed out: there is no writing, there is only re-writing. And, I would add, reading about re-writing. On that score, we should all read (and re-read) Ms. Sword’s engaging practical guide, “Stylish Academic Writing.”