Our eighth guest column has been written by Shelley Kierstead, Director, Legal Process, Osgoode Hall Law School of York University. She may be reached for comment at skierstead@osgoode.yorku.ca
Aristotle's teaching about logos (logical argument), pathos (emotional argument) and ethos (ethical appeal/credibility), focused on the persuasion of decision-makers. In the current era of public dissatisfaction with lawyers, there is an argument to be made for expanding the role of rhetoric to better "persuade" clients about lawyers' ability to respond to their needs. There is no better place to launch this role expansion than the Legal Research and Writing classroom.
Legal writing professors are accustomed to teaching the use of rhetorical devices through work with concepts like "audience", "purpose" and "tone". Most often, however, our teaching in this area does not focus directly on the emotional impact of the words used within documents such as opinion letters, pleadings and briefs, on both our own clients and opposing parties. Without sacrificing sound legal analysis, fearless advocacy or strength of persuasive argument, we could, I think, produce legal documents whose tone more clearly reflects the inclusion of legal system participants as the intended audience, and whose purpose includes giving a strong voice to clients without destroying the integrity of opposing parties. Such work would promote the more humanistic and client-centered lawyering advocated by therapeutic jurisprudence and preventative lawyering scholars. Exposure to these ideas in first year legal research and writing classes could play a key role in shaping students' view of their future role.
Research suggests that when clients feel that they have been treated by the legal system with fairness, dignity and respect, they will experience a greater sense of satisfaction from the process, regardless of final outcomes. Lawyers are key players in the legal system. Through our teaching of both predictive and persuasive writing skills, legal writing professors can help budding lawyers to understand ways in which their writing can better foster clients' sense of having been treated with fairness, respect and dignity. In the predictive writing context, this may include producing documents that show a clear understanding of the client's view of the problem (even when the problem is one that, in our opinion, does not give rise to legal recourse), writing in a manner that the client will understand so that he or she will not feel alienated from the process, and crafting recommendations that are truly responsive to the client's underlying interests.
Providing this additional nuance would not require significant changes to the work we assign, but it could encourage writing that evokes more positive emotional responses from clients. Consider an opinion letter assignment. It is not uncommon for legal research and writing texts to advise students to integrate both legally relevant facts and facts that are important to the client in an opinion letter. A brief further discussion about why a compassionate recitation of facts falling into the latter category is important to the client may lead to subtle but important changes. Consider the differences in the following two paragraphs [*]:
(1) You indicated that you have spent a great deal of time and money on reproductive assistance techniques prior to considering adoption. However, given that there are many more prospective adoptive parents than available adoptees, it is unlikely that we will be in a position to commence an adoption proceeding in the near future.
(2) You mentioned the costs you have incurred and the frustration you have experienced in relation to the reproductive assistance techniques you attempted before considering adoption. Unfortunately, given that there are far fewer babies available for adoption than couples waiting to adopt, it will likely still be some time before we can actually move ahead with an adoption proceeding.
The latter paragraph is only slightly longer than the former, and both convey the same conclusion. Arguably, however, the couple reading the second paragraph will get a more clear sense than readers of the first paragraph that they have been heard and understood.
With pleadings, we need to think about whether "boiler plate" clauses, which generally allege all manner of wrong-doing against opposing parties, produce emotionally healthy responses from either plaintiffs or defendants. For example, motor vehicle accident-related pleadings alleging that the defendant drove excessively fast, was under the influence of alcohol and/or drugs, failed to pay attention to road conditions, etc. may intensify the plaintiff's emotional response and offend a defendant who has never used drugs and abhors drinking and driving. While lawyers justify such pleadings as encompassing all possible emerging fact situations, it seems likely that in many cases, certain passages could be safely deleted, resulting in a more realistic set of allegations that are respectful of the opposing party while setting out all plausible claims. Further work could also be done to encourage the creation of court briefs that incorporate the client's voice in a language that he or she understands, and elicit a positive emotional judicial response without denigrating the opposing party.
By infusing our discussion of rhetorical devices with principles of Therapeutic Jurisprudence, we can encourage respectful, fair advocacy that will hold much persuasive value for legal system participants. I welcome a dialogue with others who teach legal research and writing about the possibilities of moving forward in this manner. Footnote:
[*] The topic for these paragraphs was inspired by opinion letter examples in Oates, L., Enquist A.& Kunsch, K. (2002). The Legal Writing Handbook (3d ed.). New York: Aspen, 226-227.: