Why introduce rhetorical figures into your legal writing? Well, if done right, they can elevate good writing to great writing. As pointed out by that acknowledged legal writing guru, Bryan Garner, in The Elements of Legal Style:
“Many of our most gifted legal writers have used figures of speech, or ‘graces of language’–not just insidious vagaries–to give their prose greater force. Figures of speech help make writing something more than serviceable; they help make it memorable.” (Id. at 147.)
Now, introducing rhetorical figures requires practice and should not be overdone. If done badly, they can be . . . well . . . done badly. As Garner himself says:
“Figures of speech are to be used only when they achieve the particular effect–a special emphasis or an aphoristic quality–that you require. Many of them are appropriate primarily in elevated writing . . . . If you were to pack your prose with them, without regard to what you were saying and why, you would achieve only an unintended humor. Experiment cautiously: The plainest possible style is far superior to one that is artificially decorated with figures of speech.” (Id. at 148.)
Here are four rhetorical figures with which most of us have at least a passing familiarity, even if not by name:
1. Metaphor. This is an “implicit comparison between two things of unlike nature that nevertheless have something in common. A metaphor says not that a thing is like something else, but that it is that something else.” Id.
“Juries are not leaves swayed by every breath.” – L. Hand, J., in US v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).
“A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.” – Denning, L.J., Seaford Court Estates Ltd v. Asher  2 K.B. 481, 489.
It has been observed that “a skillful writer with metaphors seldom commands them to appear. He collects visual and auditory impressions and waits for them to form into metaphors while he is writing. He draws them from his close knowledge, intimate experience. He does not calculate or manufacture them. ” Ken Macrorie, Telling Writing 207 (1970).
2. Irony. A personal favorite. I love irony. I also, unfortunately, seem to have very limited patience for people with no sense or appreciation for irony. Are they not the dullest knives? Of irony, Garner writes:
“The use of words whose literal and figurative senses are opposites; that is, the difference between what seems to be said and what is meant. The chief weapon of satirists, irony subverts the reader’s expectations. (Garner, at 153.)
A couple of examples:
“I cannot say that I know much about the law, having been far more interested in justice.” – William Temple, the former Archbishop of Canterbury, speaking at the Inns of Court, as quoted in Lord Denning’s The Road to Justice 1 (1955).
“The only thing about the appeals which we can commend is the hardihood in supposing that they could possibly succeed.” – L. Hand, J., in US v. Minneci, 142 F.2d 428, 429 (2d Cir. 1944).
3. Anastrophe. (Also known as hyperbaton.) “The inversion of the customary or logical order of words or phrases, especially for the sake of emphasis.” (Garner, at 157-58.) Here are three examples:
“Rules we must have.” – Jerome Frank, Courts on Trial 411 (1949).
“On the words you use, your client’s future may depend.” – Lord Denning, The Discipline of Law 5 (1979).
“Constitutional choices must be made; to all of us belongs the challenge of making them wisely.” – Laurence H. Tribe, Constitutional Choices vii (1985).
4. Alliteration. Another personal favorite. Frankly, I probably overuse it. Alliteration is “[T]he noticeable or effective repetition of similar sounds, either in the vowels (assonance) or in the consonants (consonance).” (Garner, at 165.)
Here are a couple of good examples:
“The life of the law has not been logic; it has been experience.” – Oliver Wendell Holmes, The Common Law 5 (1881).
“A quarter century has wrought no revolution among the professional purveyors of pretentious poppycock . . .” Fred Rodell, Goodbye to Law Reviews–Revisited, 48 Va. L. Rev. 279, 286 (1962).
Should you attempt to incorporate alliteration, anastrophe, irony or metaphor into letters or briefs? That is more than a rhetorical question. The answer depends on whether you’re comfortable and confident that a particular figure works. Only use a figure if it seems to fit naturally. If you have to “shoe horn” it, it’s probably better left out.