How to Use “This” & “That” in Legal Writing
Dear Legal Writer, Back when I was drafting briefs all the time, I often faced a “this” vs. “that” dilemma:
—It came up most when I needed to describe an argument made by the other side before I could explain that the argument didn’t work.
—Then, I would want to refer back to the argument without having to repeat the whole description again.
I faced the choice:
Should I refer to the argument as “this” argument or “that” argument?
🔹 EXAMPLE
“Plaintiff alleges that because she is black and her supervisor is white, when he fired her, he necessarily did so based on race. This argument fails. . . .”
-OR-
“. . . That argument fails.”
“This” vs. “that”:
❓ Which is correct?
Well, from a grammatical standpoint, both words work.
(They are both “demonstrative pronouns” and are often interchangeable.)
⬇️
BUT here’s why “that” is better in the above example:
FOUR considerations govern the choice generally. All 4 point to using “this” for your own arguments and “that” for your opponent’s in legal writing:
1. PROXIMITY: “This” indicates closeness; “that” suggests distance.
👉 “This” fits better for your own arguments because they are “closer” to you in a figurative sense, and the other side’s arguments are “over there,” away from you. By using “that” for opposing arguments, moreover, you subtly create psychological distance between the court and your opponent’s position.
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2: TIME: “This” often relates to the present or near future, “that” to the past or distant future.
👉 “That” can frame opposing arguments as past or distant, while “this” presents your arguments as current and pressing.
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3. CONVERSATIONAL CUES: “This” introduces new topics; “that” refers to previously mentioned ideas.
👉 “That” subtly cues the reader that the opposing argument is something already discussed and potentially dismissed, while “this” introduces your arguments as fresh and worthy of attention.
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4. Emphasis + Emotional Distance: “This” creates immediacy; “that” establishes distance.
👉 Using “this” for your own arguments brings them closer to the reader, creating a sense of immediacy and relevance.
⬇️
CONCLUSION:
✅ “Plaintiff alleges that because she is black and her supervisor is white, when he mistreated her, he necessarily did so based on her race. That argument fails. . . .”
While the choice between “this” and “that” may seem like a minor detail, making the right choice will make your writing more persuasive—even if only subtly.
Every word counts when crafting persuasive briefs for your client!
💌 Amanda
P.S. I sent out my monthly newsletter this week. It’s called 3 Bullets, and it provides 3 quick writing tips—1 for brief writers, 1 for 1L writers, and 1 for LinkedIn writers.
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