Emphasis and De-emphasis

By David L. Lee

Legal writing is often a struggle to emphasize favorable points or facts and to de-emphasize unfavorable ones. This struggle can be difficult. In oral communication, we typically have immediate feedback from the listener and can use many tools of emphasis and de-emphasis, such as pacing, volume, tone, body language, facial expressions, etc., to emphasize or de-emphasize. In contrast, in legal writing we neither receive immediate feedback from the reader nor have many obvious tools of emphasis and de-emphasis. How, then, can we emphasize and de-emphasize in legal writing?

Legal writing does have some traditional tools of emphasis, such as capital letters and underlining. Judges who have written and spoken about their preferences in briefs are virtually unanimous, however, in their dislike for capital letters and underlining. One judge wrote that reading capitalized text in a brief made him feel he was being yelled at like a beast of burden. In addition, capital letters are hard to read, and underlining can be annoying. (Try reading a lot of capital letters and underlining if you don't believe me.) And how do we de-emphasize using these tools? Lower case? Overlining?

In short, if we are going to emphasize and de-emphasize in legal writing, we need some other techniques. Luckily, I have some in mind, or I wouldn't be writing this column.

Break away from prose. Breaking away from prose almost always strongly emphasizes the matter being discussed, although it can sometimes de-emphasize the matter. Among the possibilities are:
To emphasize, reproduce exhibits: If you're writing a brief about a suggestive line-up, for example, a prose description packs much less wallop than does a color photograph. Similarly, if you're planning on an extensive block-quote from a letter or statute, why not substitute a reproduction of the letter (letterhead and all) or statute itself, shrunk to fit on the page, perhaps at an angle, and perhaps with yellow highlighting on the crucial language. It goes against the conservatism of the legal profession, and does carry a risk of annoying some judges, but you can be sure your point will be emphasized.
To emphasize, use charts or graphs: Charts are especially good for arguments on multi-factor tests that apply fact to law. As in the following chart, sometimes nothing makes a point like a column of check marks marching down the page:
To emphasize or de-emphasize, use footnotes judiciously: Although footnotes are, I suppose, technically prose, their position at the bottom of the page does break out of the strict body of the text and out of the textual flow. The tricky point is that, by so doing, footnotes can either emphasize or de-emphasize the point they contain.1 Just be careful with footnotes that you're not actually emphasizing something you intended to de-emphasize or vice versa.
To emphasize, use bullets: No, not that kind of bullets, but those little symbols, like "•", "»", or ">", that introduce a paragraph. They pull the eye toward themselves and emphasize what comes after.
Use good writing techniques. There are good writing techniques, far beyond capital letters or underlining, that emphasize or de-emphasize matters. Some of these are techniques that novelists use, while others come from persuasive writing. Among these techniques are:
To emphasize, don't characterize, describe: (Or, as the novelists say "Don't tell 'em, show 'em.") A description is almost always more emphatic than a characterization. Thus, instead of characterizing testimony as: "Mrs. X was shocked when she received the notice. (R. ...)", write:
To emphasize, use leitmotifs: You remember leitmotifs from your music or literature classes: those short phrases (musical or prose) that are always associated with a character. You can do the same in legal writing. For example, Professor Richard Gonzalez of IIT Chicago-Kent College of Law once had an age-discrimination case in which his theory was that a male manager was firing older female workers and replacing them with prettier, younger female workers, of whom the prime example was Ms. X (not her real name). In the brief opposing summary judgment, Ms. X's name was always preceded by the leitmotif "young and beautiful". Since Ms. X was the prime example, the brief was filled with references to "young and beautiful Ms. X", "young and beautiful Ms. X", "young and beautiful Ms. X", etc. Sure enough, in the F. Supp. publication of the judge's decision denying summary judgment, Ms. X was immortalized as "young and beautiful".

In legal writing, leitmotifs can be used not only with characters, but also with other points. Indeed, doctrines of law are often called by short names that amount to leitmotifs. To take just one area, scope of employment cases abound with doctrines like "frolic and detour" or "special errand" that could easily be used in a brief as leitmotifs. Short and punchy names of various legal doctrines make this technique available in almost all areas of the law.

To succeed as a leitmotif, a phrase should be short (three words, tops), punchy, and memorable. In addition, be careful that the repetition does not become boring or annoying.

To emphasize, use the beginning and ends of sentences; to de-emphasize, use the middle: A sentence has two points of major impact: the beginning and the end. Of these two positions of emphasis, the end is the more emphatic. In a good sentence, just as in a good joke, the more you can push the point to the end, the more it packs punch. As with most techniques of emphasis, however, caution is in order. Not everything can be emphasized, and an unending succession of punch lines can get tiresome.

The middle of a sentence, in contrast, is a place of de-emphasis, where points can be buried.

To de-emphasize, give minimal context: As I discussed in the column "Responding to Arguments", giving minimal context is an important method for de-emphasizing your opponent's arguments. Giving minimal context means letting the court know which of your opponent's argument you are responding to by referring to that argument, without repeating or explaining it. To do that, you need to reduce your opponent's argument to a word or phrase. Instead of arguing, for example, "Our opponent argues lack of notice, citing Jones and Smith, and arguing that blah, blah, blah was not blah, blah, blah, but there are more recent cases, such as....", just refer to the argument. Better would be "Our opponent's lack-of-notice argument is refuted by the recent cases of ...." Even better, lead with your affirmative point and write: "The recent cases of X, Y, and Z refute our opponent's lack-of-notice argument".
To emphasize and de-emphasize, contrast within a sentence or paragraph: By contrasting within a sentence or paragraph, you can emphasize what you want emphasized while simultaneously de-emphasizing what you want de-emphasized. (This is similar to the trial-practice maxim that impeachment should be placed where it can do the most damage.) The physically closer on the page the contrast is, the stronger the effect. The closest contrasts and, thus, the strongest effects are those that are side-by-side in the same sentence, often with one-word arguments like "although", "nevertheless", and "however":
Use outlining and proportionality. The structure of an argument (i.e., outlining) and the relative lengths of the parts of that structure (i.e., proportionality) are both crucial ways to emphasize and de-emphasize:
To emphasize or de-emphasize, place at the proper point in your outline (at all levels): Matters that are hierarchically higher in your outline seem important; matters that are hierarchically lower in your outline seem less important. This is true at all levels of the outline: the major point should be roman numeral I, the major point on the second argument should be roman numeral II A, and so on through each section, each sub-section, each sub-sub-section, etc. If your strongest point is roman numeral III (B) (2) (c), then you are not giving it proper emphasis. Roman numeral III (B) (2) (c), however, might the perfect point for something you want de-emphasized to be buried.
To emphasize or de-emphasize, use the Rule of Proportionality. Whereas outlining deals with position, proportionality deals with length. Generally, matters on which you spend a lot of time seem important and matters on which you spend only a little time will seem unimportant. Make this Rule of Proportionality work in your favor, rather than against you.

Proportionality is especially strong when combined with the other methods of emphasis and de-emphasis we've discussed. For example, an extensive description (rather than a sketchy characterization) can be especially emphatic.

Sometimes, however, normal operation of the Rule of Proportionality is reversed, and instead of long being emphasized, short is emphasized -- especially very short. For this to happen, the Rule of Proportionality generally has to be operating with one or more of the other techniques of emphasis. For example, if Roman Numeral I is a very short argument, especially if it contains another technique of emphasis like a contrasting sentence or a leitmotif or a chart, it can be very forceful.

Use other techniques of emphasis and deemphasis. There are some final techniques the legal writer can use to emphasize or de-emphasize:

To emphasize or de-emphasize, be explicit. Don't be afraid to just come out and state that something should be emphasized or de-emphasized. Think about why are you discussing a case or some facts. You may want to explicitly explain that what you're discussing needs to be emphasized because it's the Supreme Court's latest word on the subject or that it should be de-emphasized because it's not an element of the cause-of-action or because it's irrelevant, etc.
To emphasize or de-emphasize, reinforce with the typography and visual layout of the page. Use the typography and the visual layout of the page to reinforce what you want emphasized or de-emphasized. Important points should look important; unimportant ones should look unimportant. The explicit message and the subliminal message should reinforce each other. If, on the page, a minor point looks more important than does a major point, then you've undercut your own emphasis.

And, if all else fails, there's always the traditional legal-writing tools of CAPITAL LETTERS, underlining, and BOTH TOGETHER!

¹ For example, is this footnote emphasized or de-emphasized?

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