Persuasion is possible only if we’re understood, which in turn is possible only if readers remember what we’ve said. There lies the challenge of legal writing: Most of what we write is quickly forgotten, so we want to foster memory of our critical points.
How are we to do that?
Dr. Samuel Johnson supplied a clue: “The true art of memory is the art of attention.” To figure out how to command attention, consider the great literary and rhetorical figures from our past, as they repeated clauses (called “anaphora”) or sounds (called “alliteration”).
In his memorable opening to A Tale of Two Cities, Charles Dickens used anaphora to quickly capture the reader’s attention:
It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair.
Rhetorical masters have also used anaphora to attract attention to particular passages. Consider Winston Churchill’s memorable oratory, underscoring the doggedness with which British forces would pursue their enemy in the Second World War:
We shall not flag or fail. We shall go on to the end. We shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills. We shall never surrender.
Like the repetition of words, the repetition of sounds can draw attention to key passages, fostering recall. Oliver Wendell Holmes Jr. used alliteration to repeat the “l” sound in his opening to The Common Law: “The life of the law has not been logic: it has been experience.” Or consider the argument by David Boies and Ted Olson as they used alliteration to highlight the harm to gay couples’ inability to marry: “Each day Plaintiffs’ rights to marry are denied is a day that can never be returned to them—a wrong that can never be remedied.”
Overuse of anaphora or alliteration can appear contrived or distracting, so use these techniques sparingly and only when you want to draw readers to a specific idea. They’ll undoubtedly forget much of what you’ve said because our memories quickly reach overload, dumping information to make room for new information. To persuade, your goal is rather modest: You want readers to remember the critical elements of your argument. The repetition of words and sounds will foster their memory of particular passages by attracting the readers’ attention.
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