Use Your Allusion, Too
Susie Salmon is Assistant Director
of Legal Writing and Associate Clinical
Professor of Law at The University of
Arizona, James E. Rogers College of Law.
Before joining Arizona Law, she spent
nine years as a commercial litigator at
large firms in Tucson and Los Angeles.
We’ve all read briefs that are—how shall I say it—a
little too creative. They detour into irrelevant matter. They substitute
strained comparisons for apt analogy. They fudge facts or posit bizarre,
alternate-universe explanations that cannot coexist with common sense.
They fly free, untethered by actual cases, statutes, or rules.
As a result, I hesitate to use the word creative in connection with legal
writing. Much effective day-to-day legal writing is skillful but safe. It communicates its message clearly and without undue flourish. It accomplishes
its ends efficiently.
That said, at times, a carefully selected and well-placed literary device
can enliven your writing, evoke comparisons and emotions that communicate your meaning more effectively, and
enhance the persuasive power of your
prose. Most lawyers routinely use analogy, tone, and point of view. The better lawyers also use rhythm, understatement, theme, and even foreshadowing. 1
Allusion, though, feels a little bit hokier,
maybe a bit riskier. Few lawyers have the
confidence and skill to use it effectively.
What Is Allusion?
Allusion refers to a short, indirect reference to something that has particular
cultural or historical significance. It relies
on a bank of shared knowledge and experience. As a result, allusion can
only be successful if writer and audience both draw on that same bank.
A successful allusion can pack a world of meaning and emotion into few
words, invoke a shared experience and common values, and access emotions that a more straightforward logical argument cannot. “Whenever a
lawyer needs to appeal to actual human experience and human nature,” 2 a
well-chosen allusion may be the best tool.
Some allusions are safe because they are so commonplace. For example, most jurisdictions have some version of a Good Samaritan
law. Most people understand the reference to Good Samaritan
without being versed in the Biblical parable to which it refers.
Ever use the word quixotic? You employed allusion. Your reader
may understand the dictionary definition of the word without
having read Don Quixote.
The Rules of Allusion in Legal Writing
On the other hand, a lawyer using a less commonplace (and
therefore less trite) allusion gambles, trusting that his reader
shares his cultural and educational touchstones. So, is it worth
it to even try? Bryan Garner thinks so. Allusions, says Garner,
“If not too arcane, can add substantially to the subtlety and
effectiveness of writing.” 3 A literary allusion, said Charles Allan
Wright, “pays the judge the unstated compliment of assuming
that he is one of those ‘genuinely well-read’ persons who will
recognize and enjoy being reminded of what Garner calls ‘the
common body of literature with which all cultured persons are
Wright offered this guideline: The text must be intelligible
even if the reference is not understood. 5
If your reference requires a footnote, skip
it. References to popular culture are often
problematic; they lack the element of flat-
tery that Garner invokes, and allusions that
resonate with members of one group might
have no particular meaning to another.
It’s no accident that most allusion in legal
writing involves Shakespeare or Dickens.
Most people are at least somewhat familiar
with both authors. Both wrote vividly of both
law and the human condition. A party facing
an opponent with the resources to engage in
protracted discovery battles might do well to
invoke Jarndyce and Jarndyce. And we all can
grasp the futility of an effort that amounts to
mere “sound and fury, signifying nothing.”
Layered allusions can be particularly
effective. Lin-Manuel Miranda does this very
well in his Hamilton: An American Musical. 6
One need not be a fan of Notorious B.I.G.
to appreciate “Ten Duel Commandments”;
the notion of a short list of simple, binding
rules resonates with virtually everyone. But
someone who grew up listening to Biggie
will also recognize the prescription for suc-
cessful illegal activity—whether crack dealing
or dueling—and may even reflect that Smalls
and Hamilton met the same end.
In short, the successful use of allusion
relies on a simple rule that applies to all good
writing: Know your audience.
1. Don’t worry: In future columns, I’ll provide
examples of legal writers effectively using
many of these devices.
2. Kevin T. Traksos, Book Review, 93 MICH. L.
REV. 1820, 1826 (1995).
3. Charles Allan Wright, Literary Allusion in
Legal Writing: The Haynsworth-Wright Letters,
1 SCRIBES J. LEGAL WRITING 1, 5 (1990).
6. This column is secretly part of a series that
I mentally subtitle “Everything I Need to
Know About Legal Writing I Can Learn from
Hamilton: An American Musical.” Don’t tell
A successful allusion
can pack a world of
meaning and emotion into