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More on Rhetorical Emphasis:

Commenter DJR offers a good concrete illustration for my argument about emphasis:

[1.] 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!

[2.] 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.

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

[4.] The plaintiff's argument misses the point. Section 157 does not cover the facts of this case.

Which of these four examples is most likely to favorably dispose a judge to the rest of the author's argument?

Related Posts (on one page):

  1. More on Rhetorical Emphasis:
  2. Emphasis:
happylee:
No. 4? It's short and neat.

I prefer: Plaintiff argues that Section 157 applies to the the facts in this case. Plaintiff is wrong. Section 157 does not apply to the facts in this case [b/c....]

No. 2 does have some rococo flair to it...might work if judge is reading at home while sipping a scotch...
9.12.2007 1:47pm
DrGrishka (mail):
My general rule as a clerk was: "The more bolding you give me, the less credence I give you." The rule generally worked. As did the corollary rule that says "Hyperbole and ad hominemns are generally a cover for a weak (or non-existent) legal argument."
9.12.2007 1:48pm
Anderson (mail):
3.5 - lose the "totally" but keep the "even come close."
9.12.2007 1:48pm
Anderson (mail):
Re: bolding, I use it only for important language in block quotes -- people tend to skip block quotes, but I think the bolding draws them in.
9.12.2007 1:49pm
TribalPundit (W&M 0L) (mail) (www):
Okay, this stuff is gold for a 1L.

I agree with Anderson: the "totally" makes the writer sound like a teenager, but the "even come close" helps hammer the point of the argument. Maybe use "completely," "utterly," or "entirely?"

I also agree with happylee that #2 isn't generally a good idea, but in certain circumstances might work. Maybe it'd make a better oral argument.
9.12.2007 1:56pm
Daryl Herbert (www):
This is a straw example. No one said to use folksy expressions, let alone to highlight them.

There are no facts in that statement, and not even much of an argument. It's just an assertion. Emphasizing that is just pounding the table.
9.12.2007 1:58pm
JB:
The plaintiff's argument completely misses the point. Section 157 does not even come close to covering the facts of this case.

A bit of high language strengthens an argument, but you have to use the right words--completely, rather than totally (which has been, at least to my ears, valley-girl-ized), say.
9.12.2007 2:05pm
Richard Gould-Saltman (mail):
"I prefer: Plaintiff argues that Section 157 applies to the the facts in this case. Plaintiff is wrong. Section 157 does not apply to the facts in this case."

Applying a couple of passes of the Dr. Edwin S. Gould superfluous-word-pruner (pat. pending) I get:

"Plaintiff's claim that Section 157 applies here is mistaken. Section 157 does not apply here: [it requires x facts; the facts as shown here are Y]"


If this is a critical point, and the explanation is more than about five lines long, it might carry a section heading, and be referenced in a table of contents, as "Section 157 is not applicable in this matter"

r gould-saltman
9.12.2007 2:06pm
Philodikos (mail):
Not a straw example. Clerks see examples of writing like this on a continual basis. It is never effective.
9.12.2007 2:06pm
Ken A (mail):
I, too, would scrap "totally" of Example #3, and use that.

Perhaps I would use "completely" instead of "totally". Maybe "comically" might find its way into my first draft, but not in the final edit.

Slightly off-topic: Am I the only one who might replace the period with a semi-colon?
9.12.2007 2:12pm
CEB:
This example is fairly obvious, but on the issue of whether italics or boldface are ever appropriate for emphasis, how about something like this:

"Plaintiff alleges that his injuries were a result of a disabled safety lock on the equipment manufactured by the defendant. However, plaintiff neglects to mention that the lock was disabled by the plaintiff himself."
9.12.2007 2:14pm
Ken A (mail):
I like CEB's comment and example above. I would find it impossible not to use italics in that sentence (although I might just limit them to the last word, rather than the entire phrase).
9.12.2007 2:18pm
Orielbean (mail):
All I remember from my creative writing classes - using adverbs are a very bad idea. They exist to prop up poor prose. No need for a totally or completely if you use a powerful and concise verb. That is all.
9.12.2007 2:18pm
frankcross (mail):
Different audiences have different reactions. To me, the most persuasive is the one without emphasis. IMHO, people use emphasis to cover up weak arguments. And the use of words like "obviously" should send up red flags. If it's obvious, you don't need to use the word. When I see emphasis, I imagine it's browbeating to cover up what may be a weak position.
9.12.2007 2:18pm
Richard Gould-Saltman (mail):
Some further explanation as to where my view comes from:

I practice nothing but family law. I practice mostly in Los Angeles County.

L.A. County judicial officers dispose of requests for interim relief (child and spousal support, custody, restraining orders, attorney fees) based largely on declarations under oath; oral testimony is extremely limited. (See Elkins for the spill-over from a NORTHERN Cal. county trying to run their family law trials this way.)

We have to balance getting enough relevant admissible information into our papers for the judge to work(often, as noted above, on a multitude of issues) against the risk of producing a novel-like document which the judge is REALLY unlikely to read in its entirety, particularly if she's got fifteen other similar matters on calendar that morning.

r gould-saltman
9.12.2007 2:25pm
Ken A (mail):
"Using adverbs [is] a very bad idea"

Really? How bad an idea?

(Just yanking your chain. Ignore me.)
9.12.2007 2:25pm
CEB:

using adverbs are a very bad idea.

So am subject/verb agreement. :)
9.12.2007 2:25pm
Anonymouseducator (mail) (www):
I understand that this isn't the point, but it would be nice if all four made judges/clerks consider whether or not Section 157 covers the facts of the case.
9.12.2007 2:26pm
Drew (mail):
Of the four examples, #4 is the best. I agree with "TribalPundit", the use of "totally" makes the author sound like a Valley Girl.

If we are ignoring Eugene's question and offering other examples, I am reluctant to highlight my opponent's arguments by referencing them at the beginning of a paragraph. I suggest: "Section 157 does not apply to the facts of this case. The Plaintiff's argument misses the point."
9.12.2007 2:30pm
Frog Leg (mail):
"using adverbs are a very bad idea."

not just bad, but very bad?
9.12.2007 2:31pm
whit:
#2 is just plain wrong.

i'm not a lawyer, but channeling moonunit zappa in your courtroom argument seems a bad idea

it also sounds like overreaching. it doesn't merely miss the point, it TOTALLY misses the point

very "few good men" there.

i STRENUOUSLY object
9.12.2007 2:32pm
Maniakes (mail):
Missing option [5] would be best:

A photograph of the plaintiff reading a leather-bound tome, captioned:

IM IN UR SECTION 157, MISSIN UR POINT AN NOT COVERN THE FAX OF UR CASE
9.12.2007 2:36pm
Philodikos (mail):
I understand that this isn't the point, but it would be nice if all four made judges/clerks consider whether or not Section 157 covers the facts of the case.

Regardless of how badly the motions/briefs/memoranda are written, we do take the time to check. It just makes us more suspicious that the party is making a bogus argument, based on past experience.
9.12.2007 2:40pm
CEB:
Orielbean's gaffe reminds me of a list I once saw of style tips that were all written in violation of themselves. The only one I can remember offhand is "The passive voice should not be used."
9.12.2007 2:40pm
Happyshooter:
I recently had to make a decision of just this sort for a brief. The other side had a motion which rested on the situtation being covered by Article 4 of the UCC, but under the timing/sequence of events I argued it was still Article 3 at the time of the main event.

I ended up using one bold, on the word "before" the first time I used it, because it was so critical.
9.12.2007 2:41pm
Ken A (mail):
Good list of funny style tips here, CEB.

My fave: "Last but not least, avoid cliches like the plague."
9.12.2007 2:47pm
CJColucci:
As it happens, I was drafting a brief this morning. Here's the relevant portion, names changed to protect the innocent and everyone else:

Plaintiff has a theory about how Dean Jones could have learned about his disability earlier. (Pl. Dep., xxxx) Plaintiff contends that Dean Jones learned of his disability in the course of his dealings with [Plaintiff's Previous] College, where, plaintiff says, his disability was discussed in a 1990 disciplinary hearing. (Id.) But a theory of how Dean Jones could have learned about plaintiff's disability is no substitute for evidence that he did know about it.

Yea or nay on the italics? I toyed with italicizing "theory" and "evidence" as well, but thought that too much.
9.12.2007 2:51pm
Temp Guest (mail):
Plaintiff assumes that Section 157 of the Act covers the facts of this case. But this assumption is false. ....
9.12.2007 2:51pm
DDG:
I like using a colon to connect these kinds of sentences rather than a period. It creates subtle emphasis and logical connection between the two sentences.

Something like:

"Plaintiff misses the point: Section 157 does not apply
here." It's also shorer (10 v. 16 words) and, to me, punchier.


I might also use "... apply to these facts", if I particularly want to emphasize that it is the facts that control.
9.12.2007 2:52pm
Orielbean (mail):
I am slain. :-(
9.12.2007 2:54pm
Orielbean (mail):
And for the record, my usage of "very" was as an adjective, not an adverb. So there.
9.12.2007 2:56pm
Erin (mail):
CEB, I believe what you're thinking of is Wm. Safire's Fumblerules.
9.12.2007 2:57pm
Orielbean (mail):
That was a joke, for those keeping score.
9.12.2007 3:08pm
Robert Cote (mail) (www):
The plaintiff wastes the court's time relying upon Section 157 in this case.
9.12.2007 3:12pm
DJR:
Yay to me for getting elevated to a new post. For those interested, I agree with Eugene's point on italics and boldface. I was attempting to make the further point that the use of adverbs for emphasis adds little more to your argument than italics and boldface do.

If the plaintiff's argument misses the point, does it add anything that the it "completely" misses the point? (I agree in retrospect that "totally" is out of place even if you wanted to use an adverb.) The more you use adverbs, the less convincing you are.

Compare:

The light was red when the car entered the intersection.
The light was clearly red when the car entered the intersection.
The light was obviously red when the car entered the intersection.
The light was unquestionably red when the car entered the intersection.

And just for fun: The light was red when the car entered the intersection!

Which one sounds like the speaker is sure what happened?
9.12.2007 3:17pm
CEB:
CJColucci,

I'm not sure--I think I would only highlight words like that when the rest of the two phrases are identical, e.g., "The regulation says a report may be made; it does not say that a report must be made." I got tripped up a bit.

Orielbean,

Nice, and I have to say, "They exist to prop up poor prose" is a spectacularly bad sentence. It's almost impossible to read, even to oneself. :)
9.12.2007 3:19pm
Bored Lawyer:
How about:


Section 157? Nah. Inapplicable.
9.12.2007 3:20pm
Fan:
How about adding the italicized text, albeit without italics?

The plaintiff's argument misses the point by a wide margin.
9.12.2007 3:21pm
Witness (mail):
Section 157??? Lulz...pwn3d!!!!11
9.12.2007 3:26pm
AF:
CJColucci: Yea, assuming it is a trial court brief.

IMO, the lower the court, the more appropriate it is use emphases.
9.12.2007 3:26pm
Justin (mail):
I'm going to play Devil's advocate - doesn't it depend on the context? If you're trying to show that the other side's argument is wrong, #4 is the best way to do it. But lawyers write things for lots of reasons - if during an earlier hearing/trial the lawyer noticed that the other side really went overboard in its misconstruction, to the point where the attorney's credibility is on the line, #4 doesn't make the point that the argument is not just incorrect but (borderline) sanctionable - which can assist the (writing) attorney down the line in other ways.
9.12.2007 3:38pm
Ex parte McCardle:
Y'all must practice in front of judges unlike my local jurists--Dworkin's Judge Hercules, perhaps? Around here, the correct answer to the question posed would be "Whichever statement is in the brief that happened to be on top of the pile."
9.12.2007 3:44pm
abw (www):


The plaintiff's argument misses the point. Section 157 does not cover the facts of this case. Section 158 is the portion relevant.

-or-

The plaintiff's argument misses the point. Section 157 does not cover the facts of this case. Section 158 is the portion relevant.
9.12.2007 3:55pm
Malvolio:
And for the record, my usage of "very" was as an adjective, not an adverb. So there.
In the phrase "a very bad idea", "very" is an adverb, modifying the adjective "bad".

"Very" is rarely used as an adjective and only in quasi-obsolete expressions like "the very idea" and "the very spot".
9.12.2007 3:56pm
Dilan Esper (mail) (www):
I am pretty successful at motion practice, and I rarely use ANY emphasis in my papers (irony of capitalization is deliberate).

So I don't buy the "judges don't read the papers" excuse. Judges APPRECIATE when you tell them the truth and don't treat them like an MTV viewer with a 10 second attention span. This doesn't mean give them a 20 page brief when it only takes 4 pages to make your point. But emphasis is way overrated. Indeed, at least 50 percent of the time, the briefs and memoranda that I see with too much emphasis are attempting to cover up a bad argument or no argument.
9.12.2007 4:03pm
quasimodo (mail):
all your adverbs, italics, and bolds are belong to us
9.12.2007 4:38pm
Boyd (www):
Malvolio, I think you missed his Orielbean's follow-up comment:

"That was a joke, for those keeping score."

And if we're taking votes, I gotta give my nod to Maniakes' LOLyer entry.
9.12.2007 4:44pm
tdsj:
4 or a toned-down 3 would be best. But only assuming that judges (or rather, their clerks) actually read your briefs.

Many judges have lots and lots of cases. They simply don't have time to read carefully, or even read, all of the briefs. So they do a lot of skimming.

One reason to add visual emphasis is to stop the eyes of a skimmer. I think it's better to use subheaders or block quotes to accomplish the same thing, but I occasionally use italics. I have a rule for myself: only once per brief.
9.12.2007 5:09pm
Brian G (mail) (www):
I would have written, "The plaintiff's argument totally misses the point and is clearly the result of the failure to properly interpret the controlling section of the statute as enumerated. Section 157 of the Act, in any way, shape, form, substance, or through highly-imaginative mental gymnastics, does not come anywhere within the temporal or geographical range of facts as they would have any application as contemplated by the legislature in enacting the statute" if I were a blow0hard former law clerk some some attorneys I get to go against in court. Since I am not a former law clerk, I'd go with #4.
9.12.2007 5:55pm
Steve H (mail):
"Section 157 is not applicable in this matter"

How about "Section 157 does not apply."?

1. "does not apply" is two syllables shorter and more direct than "is not applicable".

2. "in this matter" is superfluous. What other matter would you be discussing?

Regarding italics or other emphasis in general, these examples are misleading because they are all one or two lines long. If you have only one or two lines, you can say pretty much anything without emphasis, because the reader's attention will (hopefully) not lag. But if you are writing a twenty- or fifty-page memorandum, using italics can be a way to vary the tone and rhythm of the writing.

At any rate, throwing in a "totally" simply makes one sound like a stoner.
9.12.2007 6:03pm
Anderson (mail):
So I don't buy the "judges don't read the papers" excuse.

I have some Mississippi jurisdictions I'd like to introduce you to.
9.12.2007 6:16pm
Rubber Goose (mail):
"Your honor is a few French fries short of a Happy Meal if you even consider plaintiff's argument that Section 157 applies in this case."
9.12.2007 7:10pm
MW:
Consider how Lincoln might have improved the Gettysburg Address, or his Second Inaugural, with the devices in examples 1, 2 or 3.

That judges may not read briefs carefully seems beside the point, unless extra words, or extra emphasis, make a brief easier to read, or clearer. I think the opposite effect is more likely.
9.12.2007 7:10pm
K Parker (mail):
Orielbean,

I suppose "majorly" is right out, too, eh? I know a lot of young people whe are going to be disappointed...
9.13.2007 3:44am
Sparky:
I prefer No. 3. (Though I do also prefer "completely" to "totally.")

And I say that as an apparatchik of a court of appeal, who reads briefs for a living.

No. 3 just tells me that the author believes what he or she is saying in a way that No. 4 doesn't.
9.13.2007 12:55pm
Dilan Esper (mail) (www):
I have some Mississippi jurisdictions I'd like to introduce you to.

I should be clear: obviously, sometimes, for legitimate or less legitimate reasons, a judge hasn't read the papers or read them completely.

But I still don't think that they like a histrionic brief that doesn't explain the arguments. Usually, the best tool for judges who haven't had time to read the papers is effective oral advocacy, not a brief full of boldface caps.
9.13.2007 4:20pm