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Classical Persuasion through Grammar and Punctuation

Lillian B. Hardwick*

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Grammar and punctuation are rhetorical avenues that lead to or away from communication and persuasion. Near the end of his tenure as president of Scribes, the American Society of Writers on Legal Subjects, legal writing guru Bryan Garner wrote that the legal profession "has come to realize that learning how to write well is about much more than memorizing rules of grammar and punctuation. It involves much larger issues of rhetoric and persuasion."1 Because one sure way to clear a room is to announce a lesson in grammar or punctuation, Garner may minimize these issues when he publicizes all-day writing workshops for law firms, government agencies, corporate legal departments, and courts. Still, Garner emphasizes that an understanding of grammar and punctuation is one of the fundamental abilities that any legal writer is expected to possess.2

In this article, I will argue that, rather than merely the foundation for the"larger issues of rhetoric and persuasion," grammar and punctuation themselves are rhetorical avenues. Because "rhetoric" is a synonym for "persuasion" in classical terms,3 to say that one results in the other is almost redundant. But the use of rhetoric as a path is supported by Aristotle's definition of rhetoric as "the faculty [power] of discovering in the particular case what are the available means of persuasion."4 Aristotle then described "three kinds" of persuasive means: ethos, residing in the character of the speaker; pathos, deriving from the attitude created in the audience; and logos, stemming from the demonstration of argument.5

Although Aristotle and others in Greece who sought to persuade did so orally,6 the rhetorical means they advocated are recognized as essential to the writing created by lawyers.7 Due to their prominence in writing, errors in grammar and punctuation create interference with communication and persuasion, if not an unbridgeable gulf between legal author and audience. While this effect is not limited to trial lawyers, the mistakes that trial lawyers generate and litigate demonstrate why all lawyers who seek to persuade should be at least as precise in writing as they are in oral argument.

I. The Classical Foundation

Legal scholars have little difficulty linking Aristotle's guidelines for persuasion to oral argument,8 which validates their current application to lawyers' work: "It is amazing how modern, how relevant, how robust, how untrite his treatise on the art of persuasion remains today. Read Aristotle, and learn how to frame an argument."9 The stretch of Aristotelian principles to writing has been a bit more attenuated: "Although Aristotle wrote about the spoken word, most of his teachings on style apply to writing as well."10 Scholars who have directly addressed poor writing in law students and practicing lawyers see instruction in classical rhetorical theory as essential: "It is not our writing that is undeveloped or unclear; it is our thinking. In order to develop ‘clearer' thinking, lawyers need to know something about the rhetorical tradition from which legal argument is derived."11

Nonetheless, no matter how clear the thinking or how well crafted the argument, it will not communicate and persuade if it neglects the most fundamental of writing techniques. Quintilian instructed, "Let no man . . . look down on the elements of grammar as small matters." Legal writing professors who connect a "strong command of the rules of grammar, usage, and punctuation" to classical rhetoric have detected a basic hurdle that lawyers must clear: none of Aristotle's persuasive means can reliably be achieved without proficiency in grammar and punctuation.

Those means are traditionally described as ethos (based on the perceived character and qualifications of the speaker/writer), pathos (the relationship with the audience necessary to move the audience to belief or action), and logos (the basis for persuading the audience to adopt a rational argument).14 Especially for legal writing, it might be assumed that logos or the logically based argument is the key to communication (even though both the meaning and application of "logos" are elusive).15 As one author put it, "[u]seful as ethos and pathos are, Aristotle is most concerned with logos—persuasion through the use of logical arguments." 16

A review of translations and summaries of Aristotle may well yield more pages devoted to the logical construction of argument than to ethos and pathos. However, Aristotle listed ethos as the "first kind" of persuasive means, explaining that "[i]t is not true, as some writers on the art maintain, that the probity of the speaker contributes nothing to his persuasiveness; on the contrary, we might almost affirm that his character [ethos] is the most potent of all the means to persuasion." 17

In a live speech, the audience absorbs and is affected by the appearance of the orator before hearing even the slightest hint of the argument. In the next instant or two, the audience responds to the speaker's voice, intonation, word choice, and phrasing, before recognizing any specific or even general content. Similarly, a lawyer who introduces herself to an audience in writing immediately conveys an impression of intelligence, education, carefulness, eloquence, precision, and professionalism—hence, believability and trustworthiness—through "[her] command of the rules of grammar, usage, and punctuation." This result is similar to the effect of using ethos in the introduction to a speech as "a means of conciliating the minds of the judges in order that they can subsequently be persuaded."19 Thus, "[r]eaders of well-written prose are . . . more [receptive] to the substance of the message being communicated."20 In contrast, a bad first impression can eliminate any chance of persuasion.

Aristotle described pathos, the second means of persuasion, as a way to create a certain attitude in the audience, "for we give very different decisions under the sway of pain or joy, and liking or hatred."21 In 1776, interpreting Aristotle, Cicero, and Quintilian, George Campbell explained how pathos works:

Just as the legal writer can use pathos to create positive emotions, the writer may also evoke negative emotions—directed towards the writer—through errors in grammar and punctuation. Aristotle envisioned that stirring an audience to conviction or action would follow the delivery of the substance of the message.23 But if the audience reacts negatively to errors found early in a piece of writing, that reaction inevitably will interfere with the audience's reception and understanding of the writer's argument.

An argument usually conveys information to listeners or readers and advances proof to convince them.24 Grammar and punctuation both effect and ease the flow of information and support the structure of the argument. In this sense, the terms "grammar" and "punctuation" are very different from "style."

Writing "style" reflects the author's choices among different words meaning roughly similar things, the length of sentences, the use of active or passive voice, and the complexity of the sentence structure. Depending on the audience, two writers may communicate equally well although one uses short, simple sentences and the other prefers long, compound, complex, or compound-complex sentences. Through style, a writer may make a certain ethical appeal, presenting the writer as a straight shooter or as a complex thinker.

Unlike stylistic choices, grammar and standard punctuation rarely reflect equally good choices; instead, they are requirements for communication. Punctuation evaporates in oral communication and exists in writing only to simulate the pauses, inflection, and emphasis that clarify meanings in speech. Deviations from the grammatical rules in speech often occur purposely, for emphasis or to suggest a certain personality trait or background. Few writers of legal documents, especially those filed with a court, violate grammatical guidelines or standard punctuation rules for emphasis or effect.25 Such violations are not stylistic choices, but rather errors that potentially undermine the ethical, logical, and emotional appeals of the writer.

II. Eviscerated Ethos

Writers can severely undermine their use of the "first kind" of persuasion that Aristotle described for oral situations—their ethical appeal—by ignoring the counterparts in writing of dress, grooming, poise, and manner. Legal writers risk evoking a negative response from their supervising attorneys, who are hoping the new associate will be able to shoulder drafting responsibilities that the senior attorney longs to delegate. A similar negative response may come from clients, especially if they have not yet met the new associate in person; this negative response undercuts the senior attorney's hope that the new attorney will interact effectively with the client. While unintended reactions from bosses and clients can affect income and employability, negative feedback from judges may mean that the unappealing writing of lawyers has impaired their representation of clients.

A. Appearance affects ethical appeal

As the television advertisement notes, "You never get a second chance to make a first impression."26 Although not the focus of his research, the idea of an indelible "first impression" is attributed to S.E. Asch, who in 1946 described how well people can instantly assess a stranger.27

Perhaps it is the "unthinking" and automatic nature of this process that causes us to rely so heavily on our initial conclusions; later contradictory information rarely replaces but at best modifies the initial deduction. Our first response is intuitive. The later modification is the result of logical thinking; it is necessary to resolve any cognitive uncertainty created by contradictory data. In this way, a positive first impression can create a "halo" effect, causing the person who receives negative information to view it in a positive light. However, a negative first impression can cause the audience to ignore later, positive data;28 perhaps the challenge of reconciling views or the resistance to disregarding an intuitive response is too great.

For example, because beauty, including grooming and dress, is thought to reflect morality and intelligence, a physically attractive defendant may be able to defend against some claims just by being present during voir dire, before the jury pool hears the evidence. If the jury does not see the defendant until trial begins—having already heard (and, to some extent, having come to believe) the charges—the effect of attractiveness may be eliminated altogether.29

A lawyer makes a first impression on the judge or the law clerk in an initial filing, usually a petition or complaint. The reader may not immediately notice the name of the filing attorney and the attorney's firm, so any ethical appeal that the judge or clerk associates with the law firm or lawyer because of previous acquaintance may not be realized until the signature page or the first personal appearance. Because audiences are so reliant on first impressions, a lawyer may want to consider the effects of various paper weights and colors, quality of printing, typefaces, and format.30

The opinion of a federal judge in Texas in an immigration case demonstrates the weight of appearance in written presentation. There, a party who had been acting pro se petitioned the court to appoint an attorney to represent him in the matter. He explained that he was unfamiliar with legal matters and "legal lingo," had limited access to legal research materials and typing facilities, and could not afford to obtain private counsel. Denying the motion, the court held that he protested too much: "Though Petitioner states that he has limited typing skills, the Court notes that nearly all of Petitioner's filings are neatly typed in proper form without obvious typos, if any; exhibits are plainly labeled and authenticated. . . . In short, the Court is quite confident that Petitioner will be able to represent himself in this cause."31

B. Typographical errors and imprecision convey carelessness and disrespect for the reader's time

A lawyer usually cannot determine whether a particular judge or clerk will have a high or low tolerance for grammatical and punctuation errors; that is, the lawyer will not know in advance whether such errors will prejudice the reader before the reader ever reaches the subject of the pleading. The reaction many people have to typographical errors illustrates the point.

Years ago, when I was doing defense work, one two-page filing we received referred to the "Dentinoid" and requested "wheat the Plaintiffs have sought." Concluding that we represented the Dentinoid (the Defendant), we agreed among ourselves to give them all the "wheat" we had. Of course, in our response, we had to address "what" they had sought. Our hope was that the court took one look at the pleading and lost respect for the plaintiff's attorneys.

While "wheat" is not a word that a spell-checker would catch, "Dentinoid" certainly was. Generic spell checking is necessary, but not sufficient, as noted in a legal advocacy poem:

Spell checking programs also cannot detect and correct personal typing idiosyncrasies (e.g., I often type "with" for "which" and "that" for "than" and vice versa); writers must allow some time to pass between typing and proofreading so they do not merely read what they recall typing but rather what they actually typed.33 A second reader can usually catch mistakes that slip by the author. While some readers may resent obvious typographical errors, these oversights do not undermine ethos to the same extent that misspellings do; misspellings do more harm by suggesting that the writer either lacks education or has failed to read broadly. A reader also is more likely to be able to detect the author's intent when confronted with a mere typographical error rather than with a grammatical error or a deviation from standard punctuation.

Often, though, as judges point out in their opinions, "typos" can be a euphemism for errors that should be attributed to the writer, not to a typist, and they can become so overwhelming as to result in rejection of a lawyer's position and obvious negativity, if not downright hostility, from the judge:

This court clearly reacted to having to work harder because of the lawyers' writing mistakes. People tend to resent those who do not pull their share of the load, particularly in a work environment, because that increases the demands on those who do.

An experiment performed by Bryan Garner reveals this same perception in judges when they are forced to read something other than clear and concise filings by attorneys.35 Garner's firm had been retained to rewrite a major appellate brief, and the result was a product that looked substantially different from the original effort, primarily being more streamlined in content and shorter. In a short paragraph, Garner summarized his view of what a brief should be (basically a concise essay, limited to the most salient arguments and support), along with that of one of the attorneys who had prepared the original version (who advised essentially a collection of everything potentially relevant, including the kitchen sink, just in case a judge might find it helpful). Then he sent both summaries to judges, asking which they preferred. While fourteen percent of the judges said that neither view was exactly correct, eighty-six percent preferred Garner's version and none preferred the other lawyer's. Some of their answers suggest the reaction of the responsible worker to the slacker or indicate appreciation for time saved the judge:

. . .

. . .

. . .

C. Slips of grammar and punctuation both confuse and offend

Instead of relying on a secretary, most new lawyers now prepare drafts of documents at their own computers. But any resulting writing errors will still be ascribed to the partner who makes the court appearance while allowing the less experienced writer to prepare the court filings. Similarly, the client who notices mistakes in a letter from a lawyer the client has not yet met will already have formed an image of the lawyer that can only be supplemented, but not overridden, by later data gathered in a personal encounter.

Writers must assume that their readers have an unlimited ability to assess errors, and write to the standards of those readers. Error-free writing will never offend someone who would not recognize the errors, but error-filled writing will undercut the lawyer's credibility with anyone who does recognize the errors. More important, if the lawyer lacks the skills to appeal to an audience with a first written communication, the lawyer is unlikely to be able to adapt once she learns the standards of a particular reader.

The negative effect of errors in standard English is illustrated by the following examples. My contracts professor in law school was very articulate. In an early lesson, he referred to a concept as being "unique" and explained that "unique" was an absolute term not subject to qualification. In other words, a concept cannot be "very unique" or "kind of unique," just as a woman cannot be "sort of pregnant." When I hear people qualify "unique," I conclude that they simply do not understand the term they are using. Had the professor not had the same negative reaction, he probably would not have shared his insight with us.

The Cambridge Encyclopedia of the English Language38 describes a "grammatical top ten" of errors resulting from a compilation of letters written to the BBC Radio 4 series English Now in 1986. Asked to provide three points of ungrammatical usage they most disliked, most of the one thousand respondents provided many more. Letters accompanying the lists contained "intemperate and extreme" language: "abomination," "appall," "drive me wild," "pain to my ear." The list of ten included split infinitives; "I" in the objective case (as in "between you and I" instead of the correct "between you and me"); "none" incorrectly followed by a plural verb ("were") instead of a singular verb ("was"); and "who" used in the objective position (as in "I know who I like" instead of "I know whom I like"). While the radio listeners believed that they were witnessing a recent degradation of the language, perhaps caused by the permissiveness of the 1980s, many of the criticized usages were first catalogued in 1869.39 Because audiences have long vented their frustration about speech and writing errors and language misuses, and continue to do so,40 writers should consider that some of these very folks (or their offspring) may be among their immediate and ultimate readers.

In my first year in the legal profession, I was assisting a small law firm with briefing done in conjunction with a very large firm, whose lawyers were doing most of the writing. Professor Charles Alan Wright had been hired to comment on a brief before it was filed. Among his criticisms was a written remark, "Why can't [prominent Houston law firm's] lawyers learn the difference between ‘that' and ‘which'!" Professor Wright was clearly irritated. Since that day, I have tried my best to avoid irritating any reader by using "which" when I should have used "that."

The judge in one recent case41 went to great lengths to detail the extent of the errors by one of the lawyers:

An indication of how the judge really felt appeared in his response to the plaintiff's petition for attorneys' fees in an amount to which the defendants objected. While the court agreed with the defendants that the $300 per hour sought was "on the high side of the customary rate," the court initially found it justified, because the plaintiff's counsel "was well prepared, his witnesses were prepped, and his case proceeded quite artfully and smoothly."43 However, the court cut the rate significantly based on the error-ridden and confusing written product:

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* © Lillian B. Hardwick 2006. Former writing instructor, University of Texas at Austin; Ph.D., English, University of Texas at Austin; J.D., University of Houston; plaintiff and defense litigation matters; consultant on judicial and attorney ethics matters; co-author of Handbook of Texas Lawyer & Judicial Ethics (West 2002-05) and Juror Misconduct (Clark Boardman 1988-89). Many thanks to Michael Smith and Linda Berger for their guidance and patience.

1 Bryan A. Garner, A Farewell Message, The Scrivener 1 (Summer 1999).

2 See e.g. Bryan A. Garner, The Legal Writing Skills Test, 5 Scribes J. Leg. Writing 107 (1994-95) (proposing that all law school students take a two-part, three-hour exam that would test "abilities that legal employers typically expect of their lawyers: (1) understanding grammar and usage; (2) tightening wordy sentences; (3) eliminating legalese; (4) summarizing judicial holdings; and (5) writing a cogent argument"). For more on these fundamentals of legal writing, see Bryan A. Garner, Don't Know Much About Punctuation: Notes on a Stickler Wannabe, 83 Tex. L. Rev. 1443 (2005); and Garner's articles in Student Lawyer, especially, Follow These 10 Writing Tips to Succeed at Your Law Firm, Student Lawyer 12 (Mar. 2005); Put the Action in Your Verbs, and Your Verbs in Active Voice, Student Lawyer 10 (May 2003); As a Lawyer, You Will Need to Know and Use Standard English, Student Lawyer 10 (Nov. 2002); Effective Writing Requires Lifelong Commitment to Honing the Craft, Student Lawyer 10 (Sept. 2002); Take this Quiz to Gauge Your Grammar Skills, Student Lawyer 10 (Feb. 2002); To Answer Questions about Grammar and Word Usage, Consult the Proper Sources, Student Lawyer 12 (Feb. 2000).

3 "The key term for the old rhetoric was ‘persuasion' . . . ." Kenneth Burke, Rhetoric—Old and New, V J. Gen. Educ. 202, 203 (Apr. 1951).

4 Aristotle, The Rhetoric of Aristotle 7 (Lane Cooper trans., D. Appleton & Co. 1932) (bracketed language is from the translator).

5 See id. at 8.

6 "Both the mechanics of ancient civilization and its primary expression remained oral . . . . According to Plato . . . fifth-century politicians were afraid of being regarded as sophists if they published speeches." George Kennedy, The Art of Persuasion in Greece 4-5 (Princeton U. Press 1963).

7 The classical means of persuasion have even been applied to the selection and use of citations. David S. Coale, Classical Citation, 3 J. App. Prac. & Process 733 (2001).

8 See e.g. Steven D. Jamar, Aristotle Teaches Persuasion: The Psychic Connection, 8 Scribes J. Leg. Writing 61 (2001-02).

9 Robert F. Hanley, Brush Up Your Aristotle, 12 Lit. 39, 39 (No. 2, 1986).

10 Jamar, supra n. 8, at 101.

11 Kristen K. Robbins, Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning, 27 Vt. L. Rev. 483, 489 (2003).

12 Quintilian's Institutes of Oratory vol. 1, 30 (Rev. John Selby Watson trans., George Bell & Sons 1910).

13 Michael R. Smith, Advanced Legal Writing: Theories & Strategies in Persuasive Writing 164 (Aspen L. & Bus. 2002).

14 See e.g. id. at 173; Linda Levine & Kurt M. Saunders, Thinking Like a Rhetor, 43 J. Leg. Educ. 108, 112 (1993).

15 "The Greek word for speech is logos, an ambiguous and sometimes mystical concept which may refer concretely to a word, words, or an entire oration, or may be used abstractly to indicate the meaning behind a word or expression or the power of thought and organization or the rational principle of the universe or the will of God." Kennedy, supra n. 6, at 8.

16 Jamar, supra n. 8, at 76.

17 Aristotle, supra n. 4, at 9.

18 Smith, supra n. 13, at 164.

19 Kennedy, supra n. 6, at 91.

20 Smith, supra n. 13, at 98.

21 Aristotle, supra n. 4, at 9.

22 George Campbell, The Philosophy of Rhetoric 78 (Lloyd F. Bitzer ed., S. Ill. U. Press 1963).

23 Kennedy, supra n. 6, at 93.

24 Id.

25 The use (or overuse) of less common punctuation may constitute some kind of "error" but does not violate standard punctuation guidelines. Instead, such use would reflect stylistic choices, such as sentence length or pattern of construction. For example, a writer would likely never find it appropriate to use an exclamation point in a motion (quoting someone would be an exception). A frequent sprinkling of exclamation points in a motion would draw abnormal attention, probably result in the loss of their effectiveness, and undoubtedly suggest some personality trait (probably unfavorable) of the writer.

26 See Advertisement, Austin (Minn.) Herald 2A (May 24, 1966) The slogan apparently went on to appear in television advertisements for Head & Shoulders shampoo. See Harlan Hogan, http://harlanhogan.com/hits.shtml (accessed May 30, 2006).

27 S.E. Asch, Forming Impressions of Personality, 41 J. Abnormal & Soc. Psychol. 258 (1946).

28 See id.; Mario A. Benassi, Effects of Order of Presentation, Primacy, and Physical Attractiveness on Attributions of Ability, 43 J. Personality & Soc. Psychol. 48, 56 (1982).

29 See Benassi, supra n. 28, at 56.

30 See e.g. Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, 2 J. ALWD 108 (2004).

31 Rodarte v. INS, 2001 WL 681255, at * 2 (W.D. Tex Apr. 4, 2001).

32 Martha Faulk, The Matter of Mistakes, 13 Persps.: Teaching Leg. Research & Writing 28 (2004). Reportedly, the particular poet is unknown.

33 WordPerfect 12's tool called "grammatik" pointed to several potential errors in the above poem, but it picks up so many questionable items in a single page as to make it impractical for longer documents. Also, it declared both of the following sentences perfectly fine: "I don't know which one." "I don't know with one."

34 Unroe v. Bd. of Educ. Rock Hill Local Sch. Dist., 2006 WL 22081, at * 7 (S.D. Ohio Jan. 4, 2006).

35 Bryan A. Garner, Judges on Briefing: A National Survey, 8 Scribes J. Leg. Writing 1 (2001-02).

36 Id. at 3.

37 Id. at 14-26.

38 David Crystal, The Cambridge Encyclopedia of the English Language (Cambridge U. Press 1997).

39 Id. at 194.

40 See e.g. From our Peevish Readers, The Scrivener 11 (Spring 2005).

41 Devore v. City of Philadelphia, 2004 WL 414085 (E.D. Pa. Feb. 20, 2004).

42 Id. at ** 2-3.

43 Id. at * 3.

44 Id. For a virtual catalogue of opinions in which courts have criticized lawyers for "poor writing" (including poor organization and style, wordiness, poor grammar, and errors in spelling, typing, and citation) see Judith D. Fischer, Bareheaded and Barefaced Counsel: Courts React to Unprofessionalism in Lawyers' Papers, 31 Suffolk U. L. Rev. 1 (1997).

Fall 2006 ~ Rhetoric & Argumentation

• With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor
• Court Speech as Political Action: Isocrates' Rhetorical Ideal and the Legal Oratory of Daniel Webster
• Classical Persuasion through Grammar and Punctuation
• Philosophy v. Rhetoric in Legal Education: Understanding the Schism Between Doctrinal and Legal Writing Faculty
• Rhetoric Theory and Legal Writing: An Annotated Bibliography
• Brush Up Your Aristotle
• Advocacy and Emotion
• Law as Rhetoric, Rhetoric as Argument
• A Basis for Legal Reasoning: Logic on Appeal
• Effective Research Assistance and Scholarly Production