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Emphasis:

An exchange I heard a few months ago -- I reproduce it from memory, so the account will not be precise, but I think I remembered the substance accurately:

[Talk had turned to effective legal writing; B is a smart soon-to-be-law-student.]

A. Another thing I learned about legal writing: Don't use exclamation points for rhetorical emphasis. And all-caps -- don't do that, either. Bold is also very bad. So is italics: It's OK to use it to highlight important terms in quotes, or terms that you're trying to distinguish from each other in your arguments, but don't use it as an exclamation point.

B. But what then are you supposed to use for rhetorical emphasis?

A. How about ... forceful arguments?

Related Posts (on one page):

  1. More on Rhetorical Emphasis:
  2. Emphasis:
FantasiaWHT:
That doesn't really help with the emphasis of individual words. Sometimes it's greatly helpful to a reader to show where the emphasis is meant to lie. Sure, you could explain it immediately afterwards or beforehand, or leave the explanation subtly hidden, but why make the reader work to figure out which of several variations were meant by a sentence?

Because it's the fastest on a computer I tend to use ALL CAPS to emphasize a single word or phrase. I realize that is very tacky-looking, so in formal writing I have always done it with italics.
9.11.2007 5:14pm
PatHMV (mail) (www):
Who is A? A current law student?

I was fortunate enough to grow up in a household with 2 Ph.D.s plus a law degree (plus a 3rd Ph.D. when my step-mother came into the picture, all Ph.D.s being in the humanities). This stroke of fortune has done my writing no end of good, but leaves me perplexed sometimes at writings by individuals who believe that adding "!!!!!!!!" at the end of a sentence will strengthen their argument.
9.11.2007 5:21pm
Daniel San:
If I want to make my arguments really forceful, I write my briefs in all caps. I have been told that, in briefs, it is just effective as it is in blog comments.
9.11.2007 5:23pm
Eugene Volokh (www):
FantasiaWHT: Could you give an example, please?
9.11.2007 5:29pm
DNL (mail):
Are you serious? (!)
9.11.2007 5:40pm
Zacharias (mail):
And forceful arguments depend upon mastery of the use of forceful verbs, which depends upon mastery of the distinctions between active/passive, transitive/intransitive, indicative/subjunctive, and the like, all of which remains pure mystery to current generations of Amerikans, especially those challenged in foreign languages.
9.11.2007 5:46pm
Dilan Esper (mail) (www):
I totally agree with Professor Volokh on this. Unfortunately, not many lawyers have gotten the memo, so I continue to see screaming, histrionic briefs and memoranda that underlying and italicize everything and explain nothing.
9.11.2007 5:46pm
PersonFromPorlock:

...but leaves me perplexed sometimes at writings by individuals who believe that adding "!!!!!!!!" at the end of a sentence will strengthen their argument.

Or as Terry Pratchett so neatly put it: "Five exclamation points! The sure sign of a diseased mind."
9.11.2007 5:47pm
uh clem (mail):
A. How about ... forceful arguments?

B. Um... do you have a URL where I can download that font?

/ba dump ba
//I'll be here all week.
///Try the Veal...
9.11.2007 5:47pm
John (mail):
A few obscenities always gets the reader's attention. Then, if law doesn't work out, B can become a Kos diarist.
9.11.2007 5:52pm
just watching666 (mail):
good one john!!!! kos diarist... man that funny... u r hilarious!!! LOL!!! 24/7!!
9.11.2007 5:58pm
bittern (mail):
EUGENE, WOULD YOU PLEASE INSTALL A BUTTON FOR 20-POINT RANSOM FONT?
You're crimping my expression here!!!!

Next are you going to say I can't use question marks either.
9.11.2007 6:04pm
Yankev (mail):

use of forceful verbs, which depends upon mastery of the distinctions between active/passive, transitive/intransitive, indicative/subjunctive, and the like, all of which remains pure mystery to current generations of Amerikans

So I'm all like, what's a verb, dude.
9.11.2007 6:15pm
Italics, et al.:
The use of ellipsis in the example is a self-refutation of the argument presented. Often, forceful arguments are made more forceful through typographic signals to the reader. No one would question the effectiveness of oral cues, such as lowering or raising the voice, strategic pauses, etc. Of course, like anything else such cues can be overdone or used poorly.
9.11.2007 6:21pm
David M. Nieporent (www):
I read a brief last week where the lawyer wrote -- and I quote exactly: "Um, no." I laughed at it, because that's exactly what I might write... in a blog comment. Not in a brief.
9.11.2007 6:31pm
Dave Hardy (mail) (www):
Dang, so that was why my petition for cert was rejected.

Reasons for granting the writ

1. The Circuits have split on an IMPORTANT QUESTION OF LAW that, if not resolved by this Court, will CERTAINLY LEAD TO THE DOWNFALL OF THE REPUBLIC!!!!!

2. My client got TOTALLY SCREWED!!!
9.11.2007 6:33pm
BGates (www):
Zacharias: all of which remains pure mystery to current generations of Amerikans

And how are you enjoying federal prison, Mr Moussaoui?
9.11.2007 6:43pm
AF:
Here's an example of appropriate emphasis:

There is a “critical difference ‘between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.’” Rosenberger v. Rector &Visitors of the Univ. of Va., 515 U.S. 819, 841 (1995) (internal quotation marks omitted; emphasis in original).
9.11.2007 6:46pm
KeithK (mail):
A good way to look at this is to start with the assumption that you should not use exclamation points, bold, italics or whatever as a general rule. Then go ahead and make exceptions to that rule when you have good reason. Having the rule will (tend to) prevent you from the silliness of "!!!!!" or bolding every third word because you really, really mean what you're saying.
9.11.2007 7:09pm
Steve:
I think the occasional exclamation point can be effective, but probably not more than once in the same document. And you have to consider the audience; a Supreme Court brief is quite different from a submission to an arbitration panel.
9.11.2007 7:12pm
Dilan Esper (mail) (www):
AF:

That's true enough, but for every one of those in a typical brief or memorandum, there's 10 examples of either overuse of emphasis with respect to things that aren't all that important ("Plaintiff fails to allege any injury beyond a generic statement that he has been damaged.") or use of emphasis to imply some sinister point but without any explanation of what the point is (in a property proceeding in a divorce case where the only issue is the formula for dividing business goodwill: "Husband, now married for the third time, urges the Court to adopt a flatly implausible formula.").

Better to err on the side of not using it. Really, even the Rosenberger quotation would be fine without emphasis too. We can figure out the point.
9.11.2007 7:12pm
Eugene Volokh (www):
AF: Exactly.

Italics, et al.: First, I wouldn't use ellipses this way in a brief.

Second, I'm surely not against typographic signals generally. Rather, there are specific problems with signals that are aimed at providing rhetorical emphasis, and that are used in persuasive writing. The most important problem is that many readers see these signals as attempts to persuade through typography rather than through forceful argument; this annoys the reader, and diminishes the writer's credibility. A related problem is that they make the writer seem overexcited, which also diminishes the writer's credibility.
9.11.2007 7:21pm
Anonymouseducator (mail) (www):
I don't think that you need to know the distinction between transitive and intransitive verbs to be able to write effectively. You need to know that you shouldn't say "He died [anything other than a type of death]," but you don't need to be able to articulate why not. Passive/active might be more useful.

Subjunctive/Indicative? Come on.
9.11.2007 7:41pm
James Taranto (mail):
Yeah!!!!! Forceful arguments!!!!! Right ON, brother!!
9.11.2007 7:44pm
Randy R. (mail):
Eugene: "Second, I'm surely not against typographic signals generally."

Any ideas on when I can use the smiley emoticon in a brief? :)
9.11.2007 7:44pm
Curt Fischer:
I am not a lawyer. Do lawyers assume that courts read in detail and with full attention every sentence of all of their briefs?

In cases where (as an engineer) I often write documents that some people may simply skim but others may read in detail.

To deal this uncertainty, I find liberal bolding to be a useful tool. That is, after writing a polished document which involves no formatting, I will go through the document and bold an average of ~1 phrase or sentence per paragraph that I believe is of particular importance.

If I were positive that all my readers would read every word, however, I would skip all the bold for sure.
9.11.2007 7:46pm
Erik M. Lehnsherr:
Note to new lawyers: Heed this excellent advice-- always.

I clerked for a state supreme court justice who graciously allowed my co-clerks and I to erect and maintain a "Legal Writing Wall of Shame" on which we posted excerpts from certification petitions or merits briefs that contained particularly egregious violated the principle described by Prof. Volokh in this post.

The examples were always hilarious and searching for new additions helped relieve some of the drudgery of reading the otherwise stupefyingly bad arguments that could reliably be found in work containing good candidates for the Wall of Shame.

One example I recall quite clearly included an advocate’s desperate assertion that that the actions of an opposing party had rendered his client’s life “a LIVING HELL!!!!” Seriously: all caps, bold, underlined, with multiple exclamation points.

NB – For those who might be offended by our gentle teasing, I add that we always diligently redacted any mention of a party or attorney in the posted examples.
9.11.2007 7:47pm
Groucho Marxism:
I'm with Italics, et al.: EV entirely undermines his point with the self-satisfied sarcasm conveyed through the ellipsis. Of course one would not use 1337-speak or bloggy typography in formal writing, that is a given, but sarcasm isn't a forceful argument either. To my mind, the pregnant pause makes A look like a know-it-all who seeks to put B in his/her place. Is A a teacher?

BTW, anybody remember Dennis Rodman or Keyshawn Johnson's books from ten years ago? Yikes! Hardly formal writing of course, but they were entirely written using bizarre boldface and resizing choices, making them virtually unreadable.
9.11.2007 7:49pm
Erik M. Lehnsherr:
That is:

"...on which we posted excerpts from certification petitions or merits briefs that contained particularly egregious violations of the principle described by Prof. Volokh in this post."

------------

Apologies.
9.11.2007 7:50pm
Waldensian (mail):

To deal this uncertainty, I find liberal bolding to be a useful tool. That is, after writing a polished document which involves no formatting, I will go through the document and bold an average of ~1 phrase or sentence per paragraph that I believe is of particular importance.

Please, tell me you're joking.
9.11.2007 8:00pm
Dr. Weevil (mail) (www):
Why should Waldensian be joking? There are circumstances in which bolding the crucial information is appropriate. I don't do it in scholarly articles, but if I'm writing a 2-page handout for high-school students explaining some point of Latin grammar, I will bold sentences that either (a) summarize whole paragraphs of examples or (b) mention important exceptions or convenient shortcuts. Of course, a legal brief is presumably more like a scholarly article than a high-school class handout or an engineering manual, so I'm not disagreeing with EV's advice.
9.11.2007 8:25pm
KeithK (mail):
Curt, as an engineer myself I think I'd be quite annoyed at seeing a document with bold portions every paragraph. I suspect you'd be better off writing a one or two page executive summary containing the important points and leave the rest of the document alone.
9.11.2007 8:28pm
amper:
What about the typical uses of italic fonts when using words from other languages, such as legal terms deriving from Latin usage that have not been assimilated into English in any substantial manner, or when citing a particular case? Is that now considered passé?

Did elementary schools and secondary schools stop teaching proper citiation methods?
9.11.2007 8:29pm
Dave N (mail):
I am continually amazed at what passes for legal writing. IMHO, the fault lies with law school administrators who think that legal writing is less important than, say, Civil Procedure and the history of en rem jurisdiction. After all, what is more important, knowing the history of minimum contacts or how to develop a skill needed almost every day of a legal career?

At least at my law school, legal writing and research was theoretically "taught" by an assistant professor apparently not on a tenure track aided by a gaggle of legal writing teaching assistants who could not teach and knew nothing about persuasive legal writing.

Steve, Dilan Espar, and AF all make excellent points and I can add little to their commentary.

RandyR: Feel free to use emoticons anytime you are my opposing counsel. ;-)
9.11.2007 8:36pm
Zacharias (mail):
Note to Lehnsherr:

Someone who writes: "I clerked for a state supreme court justice who graciously allowed my co-clerks and I to erect and maintain a "Legal Writing Wall of Shame" .... should get stapled to the Wall for abuse of the nominative case of the personal pronoun.

--

It's well known that engineers can't write; we should be grateful that they bold the important stuff so that we can skip the rest.
9.11.2007 8:42pm
fffff:
In the Northern District of California, I can expect a judge to read 65 pages on a single motion (25 for the motion, 25 for the opposition, and 15 for the reply). I concede bolding and italicizing for emphasis is tacky in legal writing; I nonetheless will bold and italicize maybe 4 or 5 sentences if I'm concerned that the Court might lose a key point in the briefing.

So sue me.
9.11.2007 9:20pm
Meshawn!:
Groucho-

I bought Keyshawn's book last Christmas (for $1) as a gag gift for a friend who is a huge sports fan. I've absolutely never seen anything like it. Each sentence would go from twelve point font, to twenty point font, to eight point font, to bold, to italics, to bold and italics. It was unreal, and unreadable. Quite unintentionally hilarious.

Speaking of sports autobiographies (but woefully off topic otherwise), my college roomate was a big wrestling fan, and he had Hulk Hogan's autobiography. There was no bolding that I remember, but every other word was "brother." Instead of "It was a hard fought match" he would say "And let me tell you, brother, it was a hard fought match." I guess the (real) author was trying not to sound too intellectual, and thought that Hulk's fans would appreciate him more if he wrote the way they spoke. But, lord! I think if you took out all the surplusage and rewrote it as a series of simple noun-verb-object sentences, the book would've been about 35 pages long.
9.11.2007 9:20pm
Richard Gould-Saltman (mail):
ffff: As a former lowly Superior Court research attorney, let me suggest that judges, and their support staff, if faced with wading through 50 pages of anything, (and if someone has 25 pages of nothing but what they consider "key points", they need to re-edit) would much rather have a nice table of contents, with descriptive headings, (so they can, e.g., skip over what they regard as "petitioner's song-and-dance on the personal jurisdiction issue", and jump to the "discussion of standing, which is really the crux issue", or whatever) than to have selected portions of each paragraph bolded in an effort to rouse their flagging attention at page 24.

Meshawn!: "But, lord! I think if you took out all the surplusage and rewrote it as a series of simple noun-verb-object sentences, the book would've been about 35 pages long."

I believe Twain made a similar observation as to what would be left of the Book of Mormon if you removed all repetitions of "And lo, it then came to pass. . . "


r gould-saltman
9.11.2007 9:41pm
Tony Tutins (mail):
To get your point across in briefs,
1. Edit down.
2. Signpost via
2a. Pithy headings, and
2b. Topic sentences.
9.11.2007 10:25pm
curious:
groucho and meshawn:

you weren't kidding about keyshawn's book.take a scary look inside.
9.11.2007 10:33pm
Waldensian (mail):

you weren't kidding about keyshawn's book.take a scary look inside.

Apparently it was ghost written by Curt Fischer.
9.11.2007 10:49pm
AF:
I guess I inadvertently made the point that you should only use italics when quoting a passage that used italics. But I actually meant that Justice Kennedy used italics correctly in the original. I think italics can be effective when used for metric purposes -- ie, to indicate which word would be stressed if the sentence were said aloud. I agree that italics should not be used for rhetorical emphasis (just as you shouldn't shout or raise your voice at oral argument).
9.11.2007 11:13pm
Arete (mail):

I am continually amazed at what passes for legal writing. IMHO, the fault lies with law school administrators who think that legal writing is less important than, say, Civil Procedure and the history of en rem jurisdiction. After all, what is more important, knowing the history of minimum contacts or how to develop a skill needed almost every day of a legal career?



Dave N. hits the nail on the head here, I think, and unfortunately it continues to be the case that professional schools as well as 4-year colleges emphasize content knowledge (theory) over application (practice) as though the former is of greater, not equal, significance. What surprises me is that this remains the case despite three decades of scholarly research supporting the basic understanding that writing simply is not an especially portable skill (i.e., if you want someone to write a legal brief well, you have to actually explain what makes a "good" legal brief "good" in the first place--it's not self-evident to most writers). There is no single literacy that a student learns once and for all that prepares them to write anything well.

Of course, it doesn't help that there seems to be no widely-recommended resource on the rhetoric of legal writing; the Blue Book, the only widespread writing resource for lawyers of which I'm aware, is largely devoted to citation conventions, not the importance of adapting one's style, structure, and overall presentation options to a specific audience meeting a specific purpose, with relevant examples that demonstrate those facets of legal writing.
9.11.2007 11:29pm
Curt Fischer:
I will interpret the widespread mockery of my earlier post as an implicit "yes" answer to the question I posed therein:

Do lawyers assume that courts read in detail and with full attention every sentence of all of their briefs?


Thanks for helping me out guys!
9.11.2007 11:45pm
Dan Greenberg (mail) (www):
That is a great anecdote and reminds me of two tangentially related things:

1. An observation made by a friend, who upon receiving one too many angry political polemics, posted "IF! ONLY IT WERE TRUE! that frequent use of capitalization and exclamation marks!! made my writing! MORE PERSUASIVE!!"

2. The apocryphal story about the fetching young student who enters the professor's office and says "I'd do anything to make a good grade in this class." The professor, raising an eyebrow, asks: anything? The student avers: anything. So the professor asks: "Would you ... study?"
9.11.2007 11:52pm
Waldensian (mail):

I will interpret the widespread mockery of my earlier post as an implicit "yes" answer to the question I posed therein:

Do lawyers assume that courts read in detail and with full attention every sentence of all of their briefs?

Thanks for helping me out guys!

I don't follow your argument here, but I confess I did not read each sentence in detail and with full attention.

Meanwhile, it is somewhat ironic that you used the word "therein."
9.12.2007 12:31am
Anonymouseducator (mail) (www):
Keyshawn's book looks like a ransom note.
9.12.2007 1:33am
Christopher Cooke (mail):
I like using bold-faced italics with exclamation marks. They get the point across.

Seriously, I use either italics or bold-faced fonts when I have a block quote from a case, and want to call attention to a few key words in the quote.

As for headings, it amazes me how few lawyers use them well. One attorney I know creates headings that are far too long to read or understand (even though the lawyer is otherwise an excellent writer). I have seen others use too few headings, and some use too many.
9.12.2007 2:00am
Daryl Herbert (www):
I have three rules:

1: use sparingly. (I generally have a hard time following this one, but I do try.)

2: read the sentence out loud. If, in speaking to the court, you would emphasize that word, it's okay to emphasize.

3: emphasizing logical connectors can be useful. The words IF AND OR BUT etc. are very important. If you're trying to explain a complicated test, emphasizing how the parts fit together is useful.
9.12.2007 4:10am
Daryl Herbert (www):
Arete: it's much better to learn how to write briefs while working for a law firm, rather than in school, for the simple reason that you get paid instead of going deeper into debt.

Plus, the experience is much better. The academic context tends towards pathetic, sluggish timelines. (Consider: two months to write a brief for moot court class.) At a real job, two weeks would be a luxury (depending on the type of brief). You get a lot more experience that way.

Get your writing skills in order in high school and college. That's largely what undergrad is for (learning how to think and how to write). The purpose of undergrad can't be to teach special skills because all of those skills could be learned faster by apprenticing at a job.

Shameless plug on behalf of our host: if you want to write good in the academic legal context, buy E.V.'s book.
9.12.2007 4:24am
DJR:
Thanks for the beginning legal writing tip, Eugene. It's true that in exceedingly poor briefs one will find exclamation points. In slightly less poor briefs one will find bold or italics used "as an exclamation point." The next tier of briefs makes liberal use of what the author surely considers to be "forceful arguments," which are actually simply rhetorical excess. Understatement is often the true path to persuasion. Compare the following, which sounds the most true?

The plaintiff's argument totally misses the point! Section 157 of the Act does not even come close to covering the facts of this case!

The plaintiff's argument totally misses the point. Section 157 of the Act does not even come close to covering the facts of this case.

The plaintiff's argument totally misses the point. Section 157 does not even come close to covering the facts of this case.

The plaintiff's argument misses the point. Section 157 does not cover the facts of this case.
9.12.2007 10:08am
BOTW:
There are also examples of legal writing where bolding, underlying, or other typographic means of emphasis are required by law. Examples of this include certain product labels, portions of bankruptcy disclosure statements, and investment prospectus. By and large, this is not advocacy writing, but does illustrate that typographic emphasis can be useful.
9.12.2007 10:17am
Daniel San:
Curt Fischer: Do lawyers assume that courts read in detail and with full attention every sentence of all of their briefs?

I think we know better. A brief of any significant length will include a table of contents that has, in addition to topic headings, key sentences. So if you read the table of contents of a well-drafted brief, you have the essence of the argument.
9.12.2007 10:31am
mbsch13:
As a federal court law clerk, I must say that nothing turns my stomach so much as an exclamation point in a brief. Generally, it signals to me gross incompetence of the attorney (Most commonly, I see something like this, in a response to a motion to compel discovery: "Defendant hasn't even responded to plaintiff's discovery requests!" —Well, then file your own g-d damn motion to compel). Only slighly less annoying—and a by product of using emphasis too often—is what I call the emphatic emphasis: emphasizing a sentence or phrase with, for example, italics, and then emphasizing again a word within the phrase with bold, underlining, or caps. Reminds me of Sam Weinberg (played by Kevin Pollack) in A Few Good Men: "I strenuously object, is that how it works? You're honor, I object. Overruled. No, I strenuously object. Well, in that case let me reconsider." In my rule book, exclamation points in legal writing are permissible only when quoting someone's exclamation (e.g., Then the witness turned to her friend and said, "Holy crap!"), and emphasis is appropriate only when necessary to prevent an important distinction from being lost (e.g., In construing the governmental immunity statute, it is important to note that the statute requires the negligence to be the proximate cause of the injury, not a proximate cause). Fail to heed these warnings and you will be mocked (granted, in chambers without you knowing about it).
9.12.2007 10:42am
A.C.:
mbsch13:

I agree, but not everything is a brief. I have a lot of different sets of rules for different documents. The one general rule is to set up a style for the document as a whole and stick to it.

A presentation handout may have the "paragraphs" broken up, for example, with the topic sentences in bold or in a distinctive font and the individual points under each topic in a numbered or bulleted list.

This format is not any more radical, conservative, persuasive, or unpersuasive than a brief. It's just a different way of setting down words on a page, and it has its own conventions.

The main difference is that lawyers are expected to know the brief-writing conventions that other lawyers know. When lawyers write other documents, we have a lot more freedom to design our own styles. Similarly, scientists may have to follow very specific rules in their journal articles, even if they have a lot more leeway in non-academic writing.
9.12.2007 11:08am
Alex R:
Maybe BOTW or someone else can explain: Just what is it with the 20-page legal documents -- like the typical EULA at which one is asked to click "Agree" whenever you install a piece of software -- which suddenly go into ALL CAPS MODE for half-a-dozen paragraphs right near the end? Is this legally required, just there to confuse and annoy the reader, or a secret code to the lawyers that means "the only stuff that is actually binding is this stuff here"?
9.12.2007 12:03pm
qwerty1:
Alex R, caps are sometimes required by law (in warranty disclaimers, for example) to protect consumers from sneaky small print.
9.12.2007 12:45pm
Arete (mail):
Deryl: I don't disagree that apprenticeship is a vital part of learning one's trade, that of a lawyer or otherwise, but so far as I've heard most professions seem to expect strong writing performance out of newly hired recent graduates, regardless of the genre being performed. (As for lawyers specifically, I can't say--I'm not a lawyer myself. I judged from many of the posts made before mine that the perception is that the writing skills of many a practicing lawyer remain atrocious, but perhaps I shouldn't conclude that.)

As for your point about "getting your writing skills" in high school and college: your comment basically ignores half my point. There isn't a single "writing skill" that's going to make you a competent writer of all genres all the time. It simply doesn't work that way. (See the discussion "Unsupported Assumption #2" and its bibliographic references in this online white paper.) So at some point, whether that's during law school or in an apprenticeship at a law firm, the new lawyer needs practical experience in writing for specific genres (briefs, memoranda, etc.). I assume (wrongly perhaps) that by the time the student is graduated and working for a firm, the stakes are higher than they would be in a law school course, meaning that the firm puts a novice under incredible pressure to perform flawlessly in writing an essentially unfamiliar genre under short deadlines.

The place to learn legal writing, it seems to me, is in law school where the stakes are relatively low, where your career isn't at stake b/c you embarrass your firm with sloppy, untested writing. And just b/c the academic context presently offers a "sluggish" pace for this type of learning doesn't mean it must be that way. If anything, I'm suggesting that it's the law school's approach to writing instruction that may need reform: the research on writing skills improvement shows that students need frequent writing opportunities (of both low- and high-stakes variety) in order to learn and improve writing skills in particular contexts, so a slow turnaround time on writing assignments in courses is itself part of the problem.
9.12.2007 12:54pm
Denny F. Crane! (mail):
Knowing your audience makes a huge difference.

If I happen to know a judge or his/her staff, I'll bend all sorts of rules. Knowing their pet peeves and their senses of humor can open the door to rhetorical techniques that I would not use otherwise.

Knowing the judge's predisposition to certain issues, types of arguments, your opponent and yourself, and generally being familiar with his/her style of communication, helps you decide whether to load up on rhetoric, or tone it down. If you're confident you can generate a belly laugh in chambers, then break that rule and exploit the opportunity!!!!!
9.12.2007 2:41pm
BOTW:

Alex R., qwerty1 has it right. There are so many different requirements in so many different areas of the law that it is difficult to sum them up in a blog comment. Some requirements are contained in court rules. Others in statutes, agency rulings or regulations. In general, however, the requirements are designed so that the emphasized text will be more readily apparent to a person reading the label, disclosure, license, or whatever. As to your specific question, I'm a bankruptcy lawyer by trade, so don't have much knowledge of EULA requirements. Companies often use bold or caps even when not required by law so that they can later say that they went to greater lengths to ensure that some important bit of text actually got noticed.

This is, of course, all very different from the persuasive writing that Eugene's original post seemed to reference. I agree that typographical emphasis is frowned upon in briefs.
9.12.2007 5:46pm
Gaius Marius:
What a bunch of hooey! Know your audience (or in the legal profession, your Judge) and write accordingly.
9.12.2007 9:03pm