Substance and Style
| Jurisdiction | United States,Federal |
| Citation | Vol. 87 No. 1 Pg. 24 |
| Pages | 24 |
| Publication year | 2018 |
Stop the "Tour Bus"
The Key to Persuasive Case Use is Thesis
By Jeffrey D. Jackson
We’ve all been told at one time or another that legal writing needs to have a thesis.[1] However, something that new law students struggle with and even experienced practitioners sometimes forget is that not only is a thesis needed for the overall document, and for each section inside the document, but also for each paragraph. This need is especially acute in documents that are meant to be persuasive, where each paragraph should be building to the overall conclusion that the writer wants the reader to reach.
Unfortunately, too many legal writers, even experienced ones, don’t think about this when writing. While the resulting product isn’t “bad” in terms of writing, it isn’t as clear or persuasive as it could be. One place that this type of writing tends to crop up most is in the use of cases. Instead of using a thesis sentence to establish the point of the paragraph and tell the reader what he or she is supposed to get out of the case, the writer instead engages in what I call “touring.” That is, the writer takes the reader on a tour of the case, only coming to the point at the end. For example, in a brief concerning scope of employment for respondeat superior, a case illustration will turn out like:
"In Williams v. Community Drive-In Theater2, a concession worker saw her manager engaged in an argument with a patron. She went to her car and obtained a shotgun in order to assist the manager. Id. at 362. However, as she was carrying the shotgun, it discharged, injuring one of the patrons. Id. The Kansas Supreme Court held that, although she may have used poor judgment, a jury could find that she was still within the scope of her employment if her intent was to help her employer rather than to gratify her own personal desire. Id. at 366-67.
This is an accurate description of what happened in Williams, but it isn’t effective in giving the reader the important information. It is rather a “tour” of Williams, starting at what happened in the case and moving to what the court decided. It forces the reader to get through the entire paragraph to get to the point, which is really buried in the last sentence. Instead, the writer needs to let the reader know up front what is important:
“An employer can be liable under respondeat superior even though the employee uses poor judgment in his or her actions, so long as he or she is motivated by a desire to further the employer’s interest rather than his or her own personal desire. Williams v. Community Drive-In Theater, 214 Kan. 359, 361, 520 P.2d 1296 (1974). In Williams, a concession worker was held to be...
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