'Liven Their Life Up Just a Little Bit': Good Pacing Persuades Judges

Abstract

Pacing is a critical component of great fiction writing, and it should be a critical component of legal writing. One of the best writers on the Supreme Court, Chief Justice Roberts, said good pacing is “very important.” He mentioned pacing not just once, but seven more times during a one-hour interview about legal writing.

Pacing refers to the writing techniques that influence the speed at which a reader reads a brief. Pacing helps a writer control when the reader will read at full tilt and when the reader will read steadily and purposefully. Legal writers should aim to make parts of their briefs page-turners. But after hustling through some parts of the brief, the legal writer should slow down in other parts to allow a reader to process a well-reasoned legal position.

In this article, I suggest that pacing is a critical tool for legal writing. I explore why pacing has not been emphasized in legal writing; I caution against taking a captive audience for granted. I provide examples of how writers in non-legal disciplines use pacing to make their writing compelling.

Unlike musicians, lawyers cannot annotate their briefs with tempo marks to tell the reader when to speed up and when to slow down. Yet lawyers can accomplish the same effect with a few writing techniques. I end this article with tips to help lawyers persuade through pacing. These writing techniques are illustrated with examples from Chief Justice Roberts’s writing in the United States v. Kokinda Petitioner’s brief.

Keywords: legal writing, persuasion, pacing, fiction, Chief Justice John Roberts