A perhaps often overlooked technique that can help your writing gain some persuasiveness is the subjunctive mood. It’s possible that you remember the subjunctive less from your English classes than from your foreign languages classes—at least that’s the case for me. When learning to conjugate verbs in another language, you’ll often bump up against the subjunctive.
Verbs have moods. According to Patricia Osborn in How Grammar Works: A Self-Teaching Guide 182 (2d ed. 1999), mood “simply means the attitude of the speaker toward the words being spoken.” In English grammar, there are three moods: the indicative, the imperative, and the subjunctive. The imperative mood is the most common and indicates that the speaker is simply to convey meaning. For example, I look forward to warmer weather is written in the imperative mood. The verb to look is properly conjugated to match the subject, I. (Although my example is in the present tense, the imperative mood works in all verb tenses.) The imperative mood is for giving commands. For example, Hurry up! is imperative. Again, the verb to hurry is properly conjugated for the understood subject, you.
The subjunctive, by contrast, “uses an out-of-the-ordinary verb form to call attention to something extraordinary” (Osborn, 183). It is, as Osborn labels it in her text, “The [m]ood of [p]ossibilities.” She explains,
[The subjunctive mood] uses an unexpected verb form, on that’s incorrect in ordinary usage, to call attention to the fact that it’s saying something unusual. It deals in possibilities, desires, things supposed, not known, often contrary to fact. (Id.)
And therein lies the subjunctive’s usefulness for persuasive writing: it deals in desires, possibilities, or in things contrary to fact. Let me explain. Let’s take this sentence: If I were to win a million dollars, I would donate it all to Marquette Law School. The verb in the dependent clause—the past tense of to be—is not conjugated properly for the subject, I. I were would not be considered grammatically proper. However, it’s proper for the subjunctive mood because by using the subjunctive mood—If I were rather than If I was—I am indicating to you that what I am saying is a desire and also contrary to fact. I am not going to win a million dollars.
This plays out in two ways in persuasive legal writing. First, legal writers can use the subjunctive to suggest desire, and we see this a lot in, say, introductions to briefs when the writer states, Defendant requests that this Court grant her Motion to Dismiss. Typically, with a third person subject—this Court—we would have a verb that ends with s—grants, in this instance. However, this sentence is written in the subjunctive, expressing a desire.
Second, legal writers can use the subjunctive to express a possibility, doubt, or a condition contrary to fact. And this is where I think it’s often under-used. If you have to argue in the alternative, you can use the subjunctive mood to subtly indicate your doubt about a position. For example, let’s say you have just concluded one part of an argument that, in your view, should end the case. Yet you need to address the alternative. At some point, you could write, If the Court were to hold for Defendant, there would be no justice for injured plaintiffs. You see the subjunctive at work here because the conjugated verb to be does not match the subject this Court. We’d normally consider this Court was as the grammatically correct form. By using the subjunctive, though, the writer is able to show her doubt that the court will, in fact, hold for the other side. It’s subtle, but it can be effective.
Forming the Subjective:
Change was to were
Change am, is, and are to be
Drop the final s from the third person singular form (e.g., grants to grant)