Figure, story, and eloquence, though features of discourse we more readily associate with literature than with law, matter in legal writing as well. The first part of this essay examines how, for better or for worse, the literary function of language, a function of language that makes its presence felt whenever figures of speech or images make a reader slow down and take notice of them, enters into judicial discourse. The second part considers judgments as narratives and examines the relationship between what might be called human story – the concrete narrative of who did what to whom, where, when, how, and why – and legal story – the abstract narrative of issue, fact, law, and conclusion. 1 The understandable desire to inject humanity and concreteness into judicial writing, I shall argue, is sometimes misguided and impairs rather than enhances its persuasiveness. The third part considers persuasiveness in relation to ethical value, making the seemingly obvious point that eloquence is no guarantor of virtue and that beautifully crafted judgments can be morally vicious. I say 'seemingly obvious' because eminent scholars such as Richard Weisberg and James Boyd White argue otherwise.
I The Literary Function
With its reliance on the deductive model of particular issue, relevant fact, controlling law, and entailed conclusion, judicial discourse might seem to be the last place where the literary function of language would have any meaningful work to do. In truth, however, particularly in the invention phase, every kind of discourse relies on metaphor and analogy for the discovery of arguments, the topic of comparison and contrast being at the core of all discursive reasoning. Judicial discourse, as James Boyd White points out, incorporates and transforms 'the kind of thought that works not [End Page 905] by argument from general premises to conclusion, but by a process of analogy and disanalogy, perceived similarities and differences' (Heracles' Bow, 130).
Though the similarities and differences that undergird legal reasoning are most visible in the invention phase and animate the topics that generate arguments, analogy and metaphor also have a key part to play in the communication phase, for the literary function of language is a working component of all linguistic action. This function is apparent, as Roman Jakobson points out, whenever signs become palpable. 2 Whether using pun, alliteration, parallelism, or any other rhetorical device, any piece of language that calls attention to itself is drawing upon the literary function by making us conscious of the words themselves and thereby forcing us to prolong and intensify our concentration. 3 Something unexpected has happened, and the more our conventional expectations are violated, the more literary and the less expository a text is. The spectrum goes from expository at the one end to literary at the other, from the formulaic to the experimental, from the boredom of the transparently predictable to the overstrain of the opaquely unintelligible. Expository writing tries to eliminate the unexpected and to be predictable if not formulaic. Except perhaps in dissent, judicial writing is normally more expository than literary, but there is always room for constructive eloquence. When the American jurist Richard Posner notes that 'the unnecessary details and truisms that stud most judicial opinions create a soothing facade of facticity' ('Judges' Writing Styles,' 1441), he is drawing upon the literary function through a vivid and emphatic verb (stud), through sibilance (the es sounds of soothing, facade, and facticity), and through alliteration (facade, facticity). His artful language makes us pause and prolong our attention as we admire his felicitous turn of phrase, and more importantly, feel the force of his argument. 4 [End Page 906]
The literary function of language often enters into legal discourse when the cost of persuasion is high. 5 The cost of persuasion is a concept devised by Posner to measure the extent and intensity of an audience's preconceptions...