Thursday, April 20, 2006

Persuasion: literary references are risky

In my seminars, lawyers have reflected what I think is a broad consensus that in brief writing, literary references in general are risky and references to Shakespeare and the Bible are particularly problematic.

These kinds of references run the risk of--
  • being lost on the reader: the reader doesn't get the reference
  • alienating the reader: the reader views the author as arrogant or stuffy
  • offending the reader: the reader is not a fan of Shakespeare or is not a Bible believer
For me, those are enough reasons to avoid Shakespearean and Biblical references in my writing.

But there is another approach. Professor Charles Alan Wright suggested that literary allusions are acceptable as long as the text is intelligible even if the reader doesn't get the reference. Charles Alan Wright, Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1, 4 (1990).

It's a high standard to meet, but a good one.

Monday, April 10, 2006

Persuasion: literary references

The most common literary references in judicial opinions are to Shakespeare and the Bible. Assuming that judicial opinions are intended to persuade--which can be debated, I know--I then ask, do you find literary references to Shakespeare and the Bible persuasive?

I've asked that question of lawyers in my seminars on many occasions. What do you think they have said?

And what about literary references generally? Do you use them in a brief or motion? Should you? What are the risks and rewards?

For further reading, try Charles Alan Wright, Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1 (1990).