On the Papers. What Have the Muses Got to Do with Legal Writing?

• Author: George D. Gopen
• Pages: 20-22

LITIGATION 20

On the Papers

GEORGE D. GOPEN

The author is Professor Emeritus of the Practice of Rhetoric at Duke University.

This is the 31st in my series of these essays

for L, stretching back to 2011.

I am announcing a change of focus. The

first 30 dealt with how to achieve clarity

in prose by understanding where readers

expect to find certain kinds of information

in an English sentence. Mastering these

reader expectations allows you better to

control (1) your writing process, (2) the

reader’s interpretive process, and (3) your

reengagement with your thinking process

as a result of the act of writing. Once you

have clarified your intended communica-

tion, what more could you strive for? You

could strive for elegance.

Elegance? But we are speaking of legal

writing here. We are not dealing with the

novel, nor with literary nonfiction. Surely

elegance belongs to former centuries, from

which we have been trying so hard to es-

cape, yes? No. Elegance for the sake of el-

egance indeed does belong to an earlier

era; but elegance that quietly, subtly, and

unobtrusively helps to guide the reader

from sentence to sentence and through-

out the journey in a paragraph plays an

important role. I am speaking of the el-

egance that comes not from fancy word

selection but rather from the organization

of the forward flow in prose via sound, the

skillful use of figures of speech, and, above

all, rhythm. We all respond to these influ-

ences as readers without ever consciously

noting their presence.

It will become possible to understand

these influences if we look closely at prose

generally considered to be “great”—prose

that has lasted in memory. I will be look-

ing at its music. I will be making a case for

that music being able to help our readers

be persuaded of the accuracy, the power,

and even the truth of what is being said.

Modes of Persuasion

Aristotle taught us that there are three dis-

tinct modes of persuasion: logos; pathos;

and ethos. We are persuaded by prose that

sets out the logic of the matter, fact after

fact, cogently arranged and connected by

ideas; we are persuaded by pathos, the

appeal to our emotions, even if there is

no context built on logic; and, when we

cannot judge either of those, we can be

persuaded by the ethos—the ethical stand-

ing of the speaker or writer, who urges us

to believe what is said primarily or solely

on the basis of who it is that is saying it.

Aristotle was right. However, I am go-

ing to be bold enough to add to his list

a fourth mode. I will call it musikos. We

can be persuaded by prose that with ease

and grace leads us forward to value some

words or some ideas more than others; we

are persuaded because we arrive at our

perception of the ideas with such ease,

grace, and power. Not in place of, but in

addition to the logic, the emotion, and the

ethicality of the source, the music matters.

The most concise and recognizable ex-

ample that comes to my mind is neither

a legal nor a political one, but one deal-

ing with the raising of one’s spirits—the

King James version of the 23rd Psalm. I

have devised a method of demonstrating

the rhythm of prose that I call colometrics.

(I’ve borrowed the term from Biblical ex-

egesis, but I use it differently.) First I sepa-

rate a text into lines, as if it were a poem.

Then I separate each line horizontally into

subunits that each represent one “beat”

of prose rhythm. You can thus easily see

how many beats I am assigning to each

line; you can also see if that line uses the

same number of beats as its predecessor

or not. Variety is one of the main ingre-

dients of art. If the rhythm changes for a

reason, and that reason has something to

do with the meaning and purpose of the

prose, then the resulting musikos becomes

an important part of how the text affects

its audience.

Here follows a colometric of the 23rd

Psalm that makes rhythmical sense to me.

I could easily fill three or four of these

L essays with an analysis of the

myriad effects of sound, rhythm, and rhe-

torical figures here. I’ll just suggest some

of the highlights. You would do well first

to read the psalm aloud from the colomet-

ric, with one beat assigned to each sepa-

rate horizontal phrase.

WHAT HAVE THE MUSES

GOT TO DO WITH LEGAL

WRITING?