Did I get your attention with that title?1 Are you curious to read more? Sensational or “clickbait” headlines have that effect: they draw interest and prompt a reader to fill the “curiosity gap” left by the headline. Sometimes they use colorful language to heighten the intrigue.2
Instilling the desire to read more is one of the most elusive challenges in legal writing. So that made me wonder: do clickbait headings have a place in legal writing—and, if so, how? Can legal writers learn anything from the success of clickbait headlines in online journalism? My research revealed useful insights applicable to legal writers of all stripes.
This is why clickbait headings have some of the qualities of strong headings in legal writing, but also serious potential downsides.
The key strength of a clickbait heading is that it catches attention and generates interest. An enticing headline leaves out just enough detail to motivate the reader to inquire further. Who could resist this standard clickbait fare:
If You’re Serious about Blogging to Get New Business, Read Me! 3
Can You Solve This Ancient Riddle? 90% of People Gave the Wrong Answer.
This Law Student Skipped the Reading, and You Won’t Believe What Happened!
Judges Won’t Be Able to Resist Your Arguments If You Use This Simple Trick.
Do Pineapples Make Great iPhone Cases?4
Persons of even modest curiosity would want to channel their inner salesperson, test their wits, satisfy their sadism, learn a new tip, and get a chuckle. Strong headings in legal writing should also include interesting, particularized content that catches the inquisitive eye.
Clickbait headings also have the benefit of being declarative. In this way, they are similar to strong “point headings” in legal writing.5 Point headings are full-sentence propositions that advance a premise. Generally speaking, a point heading is better than a pointless heading. Compare:
Article II of the U.S. Constitution
with
Article II Provides No Basis to Override the Florida Supreme Court’s Decision.
What makes the second (point) heading better than the first is that it declares a proposition, which makes the brief in which it is written more focused, readable, interesting, and—ultimately—persuasive. A point heading not only orients a reader to the subject matter but also makes known (and in the best examples shows) its relevance.
Declaring a point does not guarantee engagement, however. An analysis of over 100 million headlines revealed that the most engaging clickbait headings contain the following phrases:
|
Starting Phrases
|
Linking Phrases
|
Ending Phrases
|
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“X reasons why”
“X things you”
“This is what”
“This is the”
“This is how”
(to name the top five)6
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“will make you”
“this is why”
“can we guess”
“only X in”
“the reason is”
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“the world.”
“X years.”
“goes viral.”
“to know.”
“X days.”
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Notice the use of terms such as “this,” which are ambiguous without context and thus arouse curiosity. Linking phrases establish a connection between the subject and the potential impact and importance to the reader—they explain why the reader should care about the subject of the writing. Effective headings in legal writing should accomplish that same goal. Engaging clickbait headings also typically include reference to a list with “X” items. The most engaging number is 10, and 5 is second best.7 Listing the key points (usually 2 or 3) in support of a proposition is also good practice in legal writing, when it can be done succinctly.
The most effective clickbait headings are also short; they tend to have just 15 to 20 words.8 Bryan Garner recommends 15 to 35 words for point headings.9 Two lines of heading text are often advantageous in legal writing (usually around 20 words). Three is appropriate if the added detail transforms a conclusory heading into a plausible one. Four, and it might as well have its own heading.
But if clickbait headings are not detached from their sensationalist origins, they are ill-suited for legal writing. For example, clickbait headings often over-promise and under-deliver.10 A lawyer who over-promises or under-delivers is unlikely to be writing briefs for very long and will have nothing to promise, nor deliver. Because clickbait headings often seek to entice by intentionally omitting the lead, they frequently lack the necessary detail to make a cogent point.11 That can frustrate a legal reader. For many judges, clickbait vernacular is also likely too informal and unprofessional for legal writing. Misleading a reader could even be unethical12—not to mention illegal.13
See three ways in which clickbait-inspired “curiosity headings” might work well in legal writing.
The topic of clickbait headings in legal writing has received little-to-no attention. Nevertheless, headings that blend the hallmarks of strong point headings with the interest-piquing characteristics of clickbait headlines could be effective in legal writing in specific situations, and if drafted in an ethical and professional way. A suggested name for this kind of hybrid heading is the “curiosity heading.”
In addition to simply piquing interest, a curiosity heading could be used to vary content, thereby better maintaining and bridging reader interest section-to-section:
I. The USPTO’s determination whether a petition for inter partes review is time-barred under 35 U.S.C. 315(b) is not judicially reviewable.
A. The text, structure, and history of the AIA demonstrate that the USPTO’s Section 315(b) determinations are not reviewable.
B. This Court’s decision in Cuozzo confirms that the USPTO’s Section 315(b) determinations are not reviewable.
to
B. This correct holding in Cuozzo is the reason the USPTO’s Section 315(b) decisions have been properly unreviewable for 10 years.
C. Precluding review of the USPTO’s Section 315(b) determinations is consistent with the AIA’s purposes.14
Turning the bland B subheading in the above list into a curiosity heading could generate intrigue and increase the likelihood of keeping the reader’s interest in the middle of the argument, which otherwise typically receives less attention than the beginning and end.
Curiosity headings may also be appropriate to identify a specific list of key points, thereby heightening reader intrigue, impressing upon the reader the importance of the points, and improving memorability of each of those points. For example, in Gubarev v. BuzzFeed, Inc.15—which involved the kingpin of clickbait, online social news site BuzzFeed—counsel used a clickbait-style title for the plaintiff’s opposition to BuzzFeed’s motion to dismiss. It read: “Six Ways BuzzFeed Has Misled the Court (Number Two Will Amaze You) and a Picture of a Kitten.”16 This strategy was effective; the court denied BuzzFeed’s motion.
In a similar fashion, explicitly identifying a list could make a memorable impression on a reader, particularly if the reader investigates with eager anticipation:
These 10 Key Witnesses Say They’ll Never Trust the Defendant Ever Again, and Neither Should the Court.
Of the Five Accused Products, Not a Single Consumer in 100 Guessed That These Four Products Were Counterfeits.
The Three Procedural Reasons the Court Can Dispense with This Case Without Ever Reaching the Merits, Which Are Nevertheless Also in Defendant’s Favor.
A reader who encounters these curiosity headings is more likely to remember that there are 10 key witnesses, four highly deceptive counterfeits, and three dispositive procedural deficiencies—in addition to remembering the facts pertaining to each of those items in their respective lists.
Finally, because curiosity headings naturally introduce spark and flair, they may be well-suited as headings for thematic and policy-based arguments:
Six Ways BuzzFeed Has Misled the Court (Number Two Will Amaze You).17
This Unthinkable Tragedy Will Befall Healthcare Workers If the Court Overturns Its Long-standing Collective Bargaining Precedent.
These Astonishing Admissions about Nutrition Will Have Everyone Eating Organic Vegetables after the Conclusion of This Case.
Despite these potential opportunities, given that this style is unconventional in legal writing, curiosity headings should be used sparingly. Know your audience’s preferences before adding any to your brief. Always employ professional diction. Think about how each curiosity heading will fit into the entire structure of the brief, and its placement in the table of contents (if your brief includes one). And make sure to deliver what is promised.
Kyle Kroll
kkroll@winthrop.com
Kyle R. Kroll is an adjunct professor of legal writing at the University of Minnesota Law School and an attorney at Winthrop & Weinstine, P.A. in Minneapolis, where he practices business litigation at both the trial and appellate levels. The headlines in this article are those of the author alone, and not of any other person or organization.
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[1] Special thanks to Noah Sattlerfor his research assistance on this topic.
2 100 Mil Headlines Analysis. Here’s What We Learned, BuzzSumo (June 26, 2017), https://buzzsumo.com/blog/most-shared-headlines-study/; Curiosity Gap, Wikipedia, https://en.wikipedia.org/wiki/Clickbait (last edited July 16, 2020).
3 Laurence Bodine, If You’re Serious About Blogging to Get New Business, Read Me! Wisconsin Lawyer, Vol. 92, No. 10 (Nov. 6, 2019) https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=92&Issue=10&ArticleID=27319.
4 G. Clay Whittaker, Do Pineapples Make Great iPhone Cases?, Popular Science (June 7, 2016), https://www.popsci.com/do-pineapples-make-great-iphone-cases/. Answer:No. See Betteridge’s Law of Headlines, Wikipedia, https://en.wikipedia.org/wiki/Betteridge%27s_law_of_headlines (last edited June 14, 2020).
5 Bryan Garner, Good Headings Show You’ve Thought Out Your Arguments Well in Advance, ABA J. (Sept. 1, 2015), http://www.abajournal.com.
6 BuzzSumo, supra.
7 Id.
8 Id.
9 Garner, supra.
10 Tantaros v. Fox News Network, LLC, No. 17-CV-2958 (GBD), 2018 WL 2731268, *4 n.8 (S.D.N.Y. May 18, 2018) (quoting Clickbait, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/clickbait (last visited May 14, 2018)).
11 See Samuel Jones, 100 Times ‘Stop Clickbait’ Hilariously Summarized Clickbait Articles and Saved You a Click, Bored Panda, https://www.boredpanda.com/funny-stop-clickbait-headings/ (last visited July 16, 2020); see also Amanda Alge Bales, In 34 Words, A Powerful Writing Tip from Joseph Pulitzer #writinglegally, LexTalk (July 29, 2015), https://www.lextalk.com/b/lextalk_blog/archive/2015/07/29/in-34-words-a-powerful-writing-tip-from-joseph-pulitzer-writing-legally.aspx.
12 Emily Hillhouse, Clickbait: The Good, the Bad and the Ugly, Platform Magazine, (Nov. 20, 2018) https://platformmagazine.org/2018/11/20/clickbait-the-good-the-bad-and-the-ugly/.
13 Gabiola v. Sarid, No. 16-CV-02076, 2017 WL 4264000, at *6 (N.D. Ill. Sept. 26, 2017).
14Brief for the Federal Respondent Supporting Reversal, Thryv, Inc. v. Click-to-Call Techs., LP, No. 18-916 (U.S. Sept. 2019), https://www.justice.gov/sites/default/files/briefs/2019/09/04/18-916bsunitedstates.pdf.
15 253 F. Supp. 3d 1149, 1152 (S.D. Fla. 2017).
16 Six Ways BuzzFeed Has Misled the Court (Number Two Will Amaze You) and a Picture of a Kitten, Gubarev v. BuzzFeed, Inc., No. 0:17-CV-60426-UU (S.D. Fla. Mar. 27, 2017), 2017 WL 6040977.
17 Id.