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Literary References
OPENING STATEMENT
Use by Lawyers
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BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
Last month I reported on a study of federal judges’ use of literary references in judicial opinions. This month I report on my own survey of lawyers’ use of literary references in appellate briefs—with a focus on briefs filed in three local courts.
THE RESEARCH
Professor Gerdy Kyle’s study relied on a list of 67 of the most significant literary authors from the 1800s to the 2000s.1 I relied on the same list, which can be found on my blog, LEGIBLE. 2 I searched the Westlaw database of appellate briefs without any time restriction, and the resulting period was 1994 to the present.
To give my research a local flavor, I filtered for appellate briefs filed in the Texas Supreme Court, the Texas Court of Criminal Appeals, and the Third Court of Appeals in Austin. I quickly learned that I needed to omit the Greek epic poet, Homer. He was not cited a single time, although there were more than 130 results for that name: people, places, law firms, and even one reference to Homer Simpson.
After sifting through the results, I had 256 briefs with literary references.
THE RESULTS
Here are the top ten most frequently cited literary authors in my research, with the total number of citing briefs in parentheses:
1. Lewis Carroll (44)
2. William Shakespeare (34)
3. Mark Twain (27)
4. Robert Frost (24)
5. Victor Hugo (23)
6. Charles Dickens (16)
7. John Milton (12)
8. George Orwell (12)
9. Arthur Conan Doyle (9)
10. Aesop (6)
What does it say about appellate briefs in Texas that the most-cited literary author is Lewis Carroll? He was sixth in the study of federal judicial opinions.
Other points of interest: Shakespeare’s most cited play was Hamlet, with 20 citations. No other play had more than three, and there was a citation to King Henry VI, Part 1, which I will confess I’d neither read nor heard of. There were no female authors cited in my research, and only seven on Professor Gerdy Kyle’s list.
SHOULD LAWYERS USE LITERARY REFERENCES?
The best and most thorough guidance on lawyer use of literary references is in Michael R. Smith’s book, Advanced Legal Writing: Theories and Strategies in Persuasive Writing. 3 Professor Smith supports the use of literary references in persuasive legal documents and offers reasons to use them and reasons to be cautious.
He identifies three reasons that literary references can be useful. First is shared-knowledge theory: If the literary reference is familiar to the reader, the reference helps communicate an idea quickly and efficiently. Second is the idea that if the reference calls up a past literary experience for the reader, it allows the reader to “bring past literary knowledge to bear on the analysis”4 and enhance the reader’s understanding. Third is classical rhetoric: logos, pathos, ethos. Literary references can appeal to logic or emotion, or they can strengthen the writer’s credibility.5
But he also offers cautions. Avoid obscure literary references—you want to be confident that your reader will understand the reference. Note any cultural differences between writer and reader that could make a reference obscure or, worse, offensive. And keep use of literary references to a minimum—the more you use them, the less value they have; overused references become cliches that lose their persuasive force.6
So go ahead with literary references in your briefs; they do have some persuasive force. But ask yourself these questions first: Will my reader be sure to understand—and appreciate—the reference? Is the reference distracting or offensive in any way? Am I just showing off?
Next month, a few examples of literary references in briefs with my reactions. AL
Footnotes
1. Kristin B. Gerdy Kyle, Big Brother, Othello, and Dogs that Don’t Bark: The Use of Literary Allusion in Federal Appellate Opinions, 2020 S. Cal. Interdisciplinary L.J. 427, 440-51 (2020).
2. https://sites.utexas.edu/legalwriting/.
3. 3d ed. (2012) (chapters 11-14).
4. Id. at 257.
5. Id. at 257-59.
6. Id. at 259-63.
