The Dog That Didn’t Bark: Subtext, Disnarration, and the Subtle Art of Persuasion in Legal Advocacy

April 2025
Thomas Fox, J.D.
thomas@foxparalegalservices.com
TEXT ONLY: 502-230-1613

Introduction

In the practice of law, we are trained to value what can be proven, what is explicit, what is said. But often, what is most persuasive lies not in the spoken word, but in its absence—the implication, the suggestion, the pause. Great advocacy rests as much on restraint as on argument. This article explores two underappreciated but profoundly effective tools of persuasive lawyering: subtext and disnarration. When mastered, these techniques can elevate both written and oral advocacy, sharpening argumentation while preserving professional decorum and ethical boundaries.

I. The Power of Subtext in Legal Advocacy

Subtext refers to the implied or unspoken meaning that underlies a statement or narrative. In a legal setting, this might manifest as an understated fact placement in a brief, a carefully chosen tone in an oral argument, or a moment of silence during witness examination that invites jurors to connect the dots themselves.

Professional advocates should not underestimate the influence of what remains unsaid. Subtext operates in the background, allowing decision-makers to feel as if they have reached a conclusion independently. It builds credibility by avoiding overstatement, and it encourages reflection by leaving space in the argument.

Consider the following: a lawyer who spells out every implication risks sounding defensive or manipulative. One who crafts a narrative that allows the court to discover implications on its own appears measured, trustworthy, and persuasive. This is the heart of subtext—persuading without pushing.

Strategic Omission, a cousin of subtext, echoes Hemingway’s “iceberg theory”: the most compelling facts are often those that hint at deeper implications. A brief that carefully lays out a series of suggestive facts, allowing a judge to infer breach or bad faith without being explicitly told, often lands more effectively than one that shouts its conclusions from the outset.

II. Disnarration: What Didn’t Happen Can Still Matter

Disnarration, by contrast, concerns itself with the narrative paths not taken—the events that didn’t occur, the procedures that weren’t followed, the warnings that weren’t given. It is a tool for contrast and critique, allowing advocates to highlight the gaps in the opposing side’s case or to emphasize duties unfulfilled.

In negligence cases, for instance, disnarration allows the plaintiff to ask: What precautions could have been taken but weren’t? For a defendant, it may manifest in pointing out what the plaintiff could have done to mitigate damages but failed to. In either context, disnarration is an exercise in shaping the court’s expectations—of what should have happened—and then contrasting it with what did.

This technique is particularly powerful when used to frame causation. Constructing a plausible “but-for” world, in which different actions would have led to a different outcome, is inherently a disnarrative exercise. It leverages absence—what didn’t happen—to prove presence: of duty, of fault, of causation.

III. Practical Applications in the Courtroom

Opening and closing arguments are fertile ground for subtext. A trial lawyer might introduce a theme—such as “opportunity ignored” or “choices made”—that lingers throughout the case without being overtly repeated. Strategic use of pauses, tone, and even silence can enhance these themes, prompting jurors to reach conclusions on their own.

In witness examination, subtextual mastery lies in question structure and delivery. A lawyer might juxtapose two seemingly unrelated answers to allow jurors to perceive contradiction. The omission of a follow-up question can speak volumes. Careful word choice in phrasing questions can suggest judgment without explicitly stating it.

In legal writing, structure and organization become subtextual devices. Where an argument appears in a brief, what precedents are cited, and how facts are narrated—all of these influence perception. A brief that opens with a calm, confident tone and cites well-respected authorities subtly tells the court: “We are on solid ground.” Even punctuation and voice—active versus passive—can tilt the reader’s perception of agency and responsibility.

Disnarration in writing might involve framing a timeline in which the absence of expected conduct becomes glaring. For example, “Between the time Defendant learned of the defect and the time Plaintiff was injured—nearly three weeks—there is no record of any attempt to address the issue.”

IV. Subtext and Disnarration in Settlement, Negotiation, and Discovery

These techniques are not confined to trial or motion practice. In discovery, the tone and sequence of deposition questions can reveal more than the answers. Strategic questioning can build a record that appears benign but becomes powerful when viewed alongside later testimony.

In negotiation and mediation, subtext becomes a signaling tool. A mediator who senses that a party is aware of case weaknesses—even if never openly admitted—can leverage that awareness to foster compromise. Similarly, subtext can demonstrate seriousness and preparation: “We’ve spoken with several experts, and we’re confident in how the facts line up,” carries a very different energy than “We’re going to win.”

Disnarration plays a critical role here, too. A subtle reference to reputational risk—“We’d obviously prefer to resolve this quietly”—need not include the threat of adverse publicity. A suggestion that litigation may uncover unwelcome details may encourage more pragmatic thinking.

V. Ethical Boundaries and Practical Limits

Of course, with great subtlety comes great responsibility. The line between persuasive implication and misleading suggestion is thin and must be carefully observed. A lawyer who implies something that is contradicted by the record, even if not expressly stated, may cross ethical boundaries.

Judicial attitudes toward subtle advocacy vary widely. Some judges prefer clarity and directness and may miss or resent subtextual argumentation. Jurors may also differ in their receptiveness—what seems artfully suggestive to one may seem evasive to another.

Moreover, clients may not understand why their lawyer is “pulling punches.” Lawyers must be prepared to explain that strategic understatement can, in many circumstances, be far more effective than aggressive posturing.

VI. Toward Mastery: Developing Subtextual Skill

Mastering these techniques requires conscious practice. Review transcripts of your own oral arguments and identify where pauses, tone, or pacing influenced reception. Study great advocates—not just lawyers, but skilled speakers in other fields—and notice how they imply rather than declare.

Consider also the preferences of your audience. A judge known for pragmatic rulings may prefer a more direct style, while an appellate panel steeped in jurisprudence may respond to subtle, layered reasoning. Adapt your approach accordingly.

Injury lawyers, public defenders, corporate litigators—each practice area offers unique opportunities for subtextual advocacy. In high-profile cases, where media scrutiny adds pressure, subtext may become a survival skill—allowing lawyers to speak persuasively in the courtroom while maintaining composure in the public arena.

Conclusion

Legal advocacy is not just about argument—it is about persuasion. And persuasion is as much about silence as it is about speech. Subtext and disnarration give advocates the tools to speak volumes without saying too much, to lead without pushing, and to influence without manipulation. For the lawyer seeking to refine their craft, these techniques offer a path not only to greater effectiveness but to a deeper understanding of what it truly means to advocate.