The Gentle Art of Persuasion ➲ How to Argue Effectively in Written Submissions

28/10/2021

Litigation + Dispute Resolution

The Gentle Art of Persuasion ➲ How to Argue Effectively in Written Submissions

What is a lawyer's job if not to persuade? How can we all improve the effectiveness of our written communications?

James D. Ford GAICD

Founder, M.D. & General Practice Lawyer

How can we all improve the effectiveness of our written communications?

My aim is to prompt your thinking about how you can improve + perfect:

The gentle art of writing a persuasive message.

Developing persuasive advocacy skills is a separate more nuanced topic which exceeds the scope of this blog article.

If this is your aim, I recommend you start with reading Chester Porter QC's book "The Gentle Art of Persuasion" cover to cover!

"Having the best legal arguments is not enough, they need to be presented in such a way that they are persuasive."

Who was Chester Porter QC? Why should we listen to him?

Chester Porter QC was a leading Australian defence barrister a.k.a. the "Smiling Funnel-Web*" due to his uncanny ability to lay a spider's web during cross-examination for his witnesses to catch themselves in …

His reputed “Chester Porter walks on water” followed his brilliant defence of District Court Judge John Foord, who had faced charges of attempting to pervert the course of justice.
A caricature in the National Times portrayed Foord in a T-shirt which read
“Judge John Foord Can Thank the Loord”.

* A Funnel-Web is a well-known species of spider in Australia. It is the world's deadliest spider able to kill a human in 15 minutes!

What does he say about Written Submissions?

The following passages have been extracted from Chapter 21: Written Submissions of the "The Gentle Art of Persuasion".

The first consideration: How long the paper ought to be?
Unfortunately, in many learned papers these days it is believed that the longer the paper the more learning it contains, a belief that is usually quite wrong.
A written submission should not be padded.
The message should be clear and it should be introduced early so that the reasons for the message are quickly apparent.
It should conclude in such a way as to summarise and emphasise the message.
In the case of a persuasive submission, it should be quickly made clear what is sought to be persuaded, and the arguments in favour should follow.
It is expected that a written submission will be carefully checked, and that there will be few errors.
What you said last week can be the subject of a dispute.
What you wrote is there to be read.
The careless words of an enthusiastic orator may perhaps be forgiven, if not forgotten, but the deliberate words carefully written down cannot be easily excused.
Care is essential.
A written submission to pursue some cause should not be dashed off in haste.
It should be written carefully and read again by the author, not just to check for errors but to re-check the substance.
When checking the substance of a written submission, you should try to read it as others will understand it, and see whether that matches your original intention.
If not, it can be corrected or amended.
The written submission gives the reader time to think and consider.
The idea is to draft it so that the more it is considered, the more convincing it will be.
It is arguable as to which is more effective, but I believe that the oral submission is better than the written submission in the art of persuasion because one can usually appreciate the reaction of the listener and adapt the submission accordingly.

Thinking, Fast + Slow

The following suggestions for writing persuasive messages are sourced from pages 62-70 of "Thinking, Fast + Slow" by Nobel Prize Winner: Daniel Kahneman ...

Reduce Cognitive Strain: The Pleasure of Cognitive Ease

The general principle is that anything you do to reduce cognitive strain will help, so you should maximise legibility.

Do Not Use Complex Language

If you care about being thoughtful + credible, do not use complex language where simpler language will do.

Make your Message Memorable

Put your ideas in verse if you can; they will be more likely to be taken as truth.

If you quote a source, choose one with a name that is easy to pronounce

Use High Quality Paper

Use Bright Colours

Use an "Easy to Read" Font

Keep congruent with facts known to be true

Use Coherent Logic

Favour Audiences with a Bias to Believe + Confirm

Repeat Yourself to take advantage of the Exposure Effect (or include something the audience has seen before and viewed positively)

My Additional Thoughts

Frame your message

In my view it is important to frame your message to place it in the right context so your audience can relate to it, and more likely be persuaded by it.

The more easily your audience can associate your message with concepts they already believe, the more likely your message will successfully persuade your audience.

Use of authoritative sources, stories + case studies can help add credibility and real world authenticity to your message.

Pg 88 of"Thinking, Fast + Slow" states the following about Framing Effects:

Different ways of presenting the same information often evoke different emotions.
The statement that "the odds of survival one month after surgery are 90%" is more reassuring than the equivalent statement that "mortality within 1 month of a surgery is 10%".
Similarly, cold cuts described as "90% fat-free" are more attractive than when they are described as "10% fat.
The equivalence of the alternative formulations is transparent, but an individual normally sees only one formulation, and what she sees is all there is.

Sources:

1️⃣ "The Gentle Art of Persuasion: How to Argue Effectively" by Chester Porter QC [1926-2021]; and

2️⃣ "Thinking, Fast and Slow" by Nobel Prize Winner: Daniel Kahneman.

To learn more about Chester Porter QC's career + accomplishments: Listen to the series of interviews by John Farquharson with Chester Porter QC in the Law in Australian Society oral history project here. [August 1-2, 2001]

He was the author of a number of other books, including "Walking on Water: A Life in the Law".

Social Sharing Image: Courtesy of pine watt on Unsplash

Credits: This blog article was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This blog article is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.