Dear Legal Writer, When I write, I draw a hard line between “this” and “that.”

You think these words mean the same thing, but they can have dramatically different effects.

Consider: “Plaintiff argues that because she is Black and her supervisor is white, his decision to fire her must have been race discrimination.”

Now you want to explain why that argument’s wrong, but you have to choose “A” or “B”:

A. “This argument fails because . . .”
B. “That argument fails because . . .”

Grammatically, both are correct.

But I would choose “that” 100% of the time.
Here is why. ⤵️

🔷 PROXIMITY:

We use “this” for something close to us and “that” for something farther away, and the distinction can be psychological in addition to physical.

So when you call your opponent’s position “that argument,” you subtly distance yourself from it.

You are signaling: That is their argument, not mine.

And you are inviting the reader to view the argument from that same distance.

🔷 CONVERSATIONAL CUES:

Think about how we respond to statements in everyday conversation:

—“That is not what happened.”
—“That does not follow.”
—“That misses the point.”

In each instance, “that” points back to a statement we are challenging.

The same effect works in a brief.

By writing “That argument fails,” you create a natural transition from your opponent’s position to your response.

🔷 EMPHASIS: “This” can create a greater sense of immediacy and connection.

Compare:

—“This case turns on a single question.”

—“This distinction is critical.”

In each sentence, “this” draws the reader’s attention to something the writer wants to emphasize.

It brings the point closer.

That is often exactly what you want when developing your own argument, but not when referring to your opponent’s.

BOTTOM LINE:

When referring to an opponent’s argument, use “that.”

When describing your own argument, use “this.”

💌 Amanda

#DearLegalWriter

N.B. This post expresses a writing preference, not a grammatical rule. Both words can be correct, and context always matters.

But the “this” vs. “that” distinction is worth making, especially in persuasive writing: Use every tool of persuasion you can.