“So often in professional life – life in any profession – we exist in the minds of others only through our writing.” This may be particularly true for civil litigators, whose pleadings and correspondence at the beginning of a case or their memoranda in support of dispositive motions, for instance, may be more likely to play a role in the outcome of a case than actual trial practice. This is because so few civil cases actually reach trial.
According to statistics provided at www.uscourts.gov, only one percent (1.0%) of civil filings reaches trial in the United States district courts for the Fourth Circuit Court of Appeals (i.e., federal trial courts within North Carolina, South Carolina, Virginia, West Virginia, and Maryland). This is one reason why advocacy must exist in writing. Writing skills are essential to the integrity of the legal profession and critical to the strength of a lawyer’s ability to effectively advocate for his or her client.
Lawyers use persuasive writing in a wide range of circumstances, such as filings with the court and both formal and informal correspondence with clients and opposing counsel. Indeed, “[i]t is of the utmost importance as a lawyer for your prose to proclaim accurately not only what is going on in the case but also who and what you are[,]” writes author George Gopen, Professor Emeritus of the Practice of Rhetoric at Duke University, in his recent article titled, The Style Proclaims The Lawyer: You Are What You Write. To illustrate this point, Gopen provides:
Here is a paragraph from a 1984 campaign speech by Walter Mondale, who was the Democratic candidate up against Ronald Reagan seeking a second term.
I have refrained directly from criticizing the President for three years. Because I believe that Americans must stand united in the face of the Soviet Union, our foremost adversary and before the world, I have been reticent. A fair time to pursue his goals and test his policies is also the President’s right, I believe. The water’s edge is the limit to politics, in this sense. But this cannot mean that, if the President is wrong and the world situation has become critical, all criticism should be muted indefinitely.
Mondale was a long-term senator, respected by most of his colleagues on both sides of the aisle… And yet he lost that election by the largest electoral margin in U.S. history… Exit polls suggested that even a majority of Democrats felt Mondale was not strong enough to face up to the continuing threat posed by the powerful Soviet Union.
Gopen notes that Mondale’s speech was grammatical and intellectual, but the “stress positions” were weak, causing Mondale to appear politically impotent. Gopen defines the term “stress position” as the words to be read with the most emphasis.
In a revision of the above passage, Gopen illustrates the effect of moving “something of import” into every stress position.
For three years, I have refrained from directly criticizing the President of the United States. I have been reticent because I believe that Americans must stand united before the world, particularly in the face of our foremost adversary, the Soviet Union. I also believe a President should be given fair time to pursue his goals and test his policies. In this sense, politics should stop at the water’s edge. But this cannot mean that all criticism should be muted indefinitely, no matter how wrong a President may be or how critical the world situation may become.
The style of this revised paragraph presents us with a man who is a tower of strength, a man of clear vision, a man who can lead us all forward.
In researching other speeches from that campaign, Gopen discovered the speechwriter’s stylistic habit was to fill the stress positions weakly, as he did in this example. Thus, the lesson here is that “[w]e are all creatures of rhetorical habit; and the sum of all our rhetorical habits becomes the identity of the character we show to the reading world.”
To learn more about stress positions and persuasive writing, see Gopen’s article in the Fall 2013 edition of Litigation, along with many of the other books and materials available to you right here at the Charlotte School of Law Library.
 George Gopen, The Style Proclaims The Lawyer: You Are What You Write, The Journal of the Section of Litigation American Bar Association, Fall 2013, at 12.
 The Judicial Business of the United States Courts reported the highest rate of civil cases reaching trial is 1.9% in the district courts for the Ninth and First Circuit Courts of Appeal; the lowest rate is 0.9% in the Third and Eleventh Circuits. For more information, see http://www.uscourts.gov/Statistics.aspx.
 Gopen, at 12-13.