Not all appellate briefs are created equal. Some lawyers are just naturally better in their legal analysis, or are better writers. But we can all learn techniques to improve our legal writing. In earlier posts I’ve written about some words that can help your legal writing be more effective, “but,” and “although.” Another powerful word to use in legal writing is “because.”

The purpose of legal writing is often to persuade, and that is especially true of appellate briefs. The most obvious way to persuade a person, including judges, that something should to be done is to give the person a reason why it should be done. A simple way to transition between what is asked of the court and the reason proffered as to why that should be done is to use the word “because.”

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A blog about writing advertising copy noted that use of the word “because” and providing a reason, almost any reasonable excuse, greatly improves your odds of having a person respond positively to your request.

[T]the most effective transition word when giving a “reason why” is because. The power of becausehas actually been documented by social psychologist Ellen Langer …. Langer performed an experiment where she asked to cut in line to use a copy machine.

She tested three different ways of asking, and recorded the results:

Excuse me, I have five pages. May I use the Xerox machine?

60% said OK.

Excuse me, I have five pages. May I use the Xerox machine because I’m in a rush?

94% said OK.

It appears that giving the “reason why” of because I’m in a rush boosted the effectiveness of the request immensely.

But here’s the kicker:

Excuse me, I have five pages. May I use the Xerox machine because I have to make some copies?

93% said OK.

The trigger word “because” is so powerful that it didn’t really seem to matter that the “reason why” provided was something you might expect to hear from a four year old child.

Just think back to when you were a child and you wanted to know why you needed to clean your room or eat your vegetables. The response from either of my parents, and perhaps yours, was “Because I said so.” “Because” has simply been ingrained into our subconsciousness as a powerful word.

Ross Guberman, author of the excellent book on appellate writing, “Point Made:How to Write Like the Nation’s Top Advocates,” also makes note of the effectiveness of the word “because” in persuasive legal writing. He suggests that brief writers “[l]ove ‘because.'” Guberman notes that an effective technique used by great appellate lawyers is incorporating “because” into subject headings. One example he gives from an appellate brief written by attorney Miguel Estrada is:

“This Court’s Order does not involve a ‘controlling question of law’ because there are alternative bases for federal jurisdiction.”

The following are a few examples of argumentative sentences pulled from various appellate briefs I have written are good examples of how you can use “because” in persuasive writing:

  • This Court cannot answer that question because its only role in appellate review of a compensatory damage award is to determine whether the jury award was the product of passion, prejudice, bias, or some other improper motive.
  • Under the Kyles standard, the jury’s full emotional distress award in this case must be reinstated because the jury was presented with abundant evidence of her mental suffering, and the award was motivated only by that evidence and not by an improper purpose.
  • The documents which the payday lenders calls checks are not checks because they are not payable on demand. They are not payable on demand because, as the payday lenders themselves noted in their complaint, the documents were not backed by sufficient funds at the time they are written and the payday lenders are aware of that fact.
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  • Under this count Trustee O’Halloran has standing because First Union’s actions (or omissions to act) caused Greater Ministries to suffer even greater liability to the Ponzi scheme victims.
  • This reasoning by the district court is also erroneous because it is based on an assumed set of facts not consistent with the allegations of the amended complaint.

These examples should demonstrate the power of “because.” Keep it in mind when you are writing your next brief. Just be sure not to overuse it.

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