It’s surprising how often advocates say a court should do something and then fail to adequately orient their readers to their arguments. Three pitfalls pervade modern advocacy.
The most serious is just launching into a discussion. “Jenkins erroneously relies on McCallister v. Blaine.” Talk, talk, talk. No signposts. Readers feel as if they’re drifting at sea. No rudder even.
A second deficiency—barely a notch up the ladder from the bottom rung of unskillfulness—is inadequate signposting. “The court should deny Jenkins’s motion,” followed by “First, Jenkins is wrong about the holding in McCallister v. Blaine.” The advocate then lists several other arguments over the course of several pages, with paragraphs beginning “Second,” “Third,” “Fourth,” and sometimes “Finally.” We’re given no preview of how many reasons there might be—perhaps because the advocate didn’t even know when embarking on the voyage.
An equally common but less incompetent failing is to say, “Jenkins is wrong in relying on McCallister v. Blaine for several reasons.” That’s a weak signpost. Many readers then start counting the reasons because the writer has failed to do it for them. There might be three or four. But sometimes, by the time you reach “For the foregoing reasons,” you realize that there was only one. Perhaps the writer suspected that there might be several reasons but lost sight of the need to quantify.
What is wanted is some smart guidance that keeps readers constantly (if only subliminally) aware of how the argument is progressing. “In ruling on this motion, this Court is presented with three issues—any one of which is dispositive in Burton’s favor.” Then “First, . . .” It’s a simple but powerful format. Remember it and use it.
POSTSCRIPT: Surely you didn’t think you caught an error in the first sentence: a split infinitive with to adequately orient? We give you more credit than to think you’d mindlessly condemn all split infinitives. You surely know your 1926 Fowler, who on page 559 ridiculed “non-split diehards” who stupidly condemn to legally organize public worship, to publicly assume the stance of a martyr, to powerfully move the heart toward charity, and to effectively prevent cosmopolitan financiers from manipulating reserves. If that’s giving too much credit, may we suggest that you invest in Garner’s Modern English Usage (4th ed. 2016), which has a witty and authoritative three-page discussion of the issue?