Judges aren’t experts on their own persuasion

Plain-writing advocates sometimes lose their nerve in opposing ineffectual traditionalism. The timing of the panic attacks is a clue to a deeper temptation besetting brief writers; these plain writers hesitate in recommending the same practices. Advising that hanging prepositions, split infinitives, and contractions aren't flaws per se, they advise caution in enjoying this liberality: you should adapt your writing to your audience. If adapting to your audience means writing the way you anticipate the judge endorses, then these adaptations reduce your persuasiveness to what the judge would attain as an advocate.

The cautious plain writers don't explain the specificity of the admonition. Abandoning various traditional verbal forms called legalese is a big part of a brief writer's early progress. Why such concern that a contraction will prejudice the court and no apprehension that the absence of a "Comes now" in a pleading or the presence of approximate dates in a facts' statement will offend the court's expectations? A commonality distinguishing the three grammar/style myths—hanging prepositions, split infinitives, and contractions—lies in their being longstanding "disputed issues" of middlebrow culture. They are also myths that have been almost entirely demythologized. Believers on the wrong side of a losing myth are often opinionated, and everyone has had at least one regrettable confrontation with a grammar fundamentalist; but whether the judge approves of your grammar standards doesn't determine the effectiveness of your practices. Judges aren't experts on persuasion, least their own.

The judge's pleasure tempts lawyers. It tempts trial attorneys, such as the inexperienced who become unbearably obsequious in the courtroom, but the parallel temptation for brief writers is more subtly expressed, as writing bears less unctuousness and more anxious conformism. Both the unctuous trial attorney and the overconforming brief writer aim to please because of unconfidence in their ability to persuade.

Thinking outside the verb

English grammar doesn't prohibit ending a sentence with a preposition, but unless the sentence is very short, the practice is usually poor style. The guideline follows as corollary to an overarching principle of English style: the sentence's end position should be exploited to convey new information, a function it performs with unique effectiveness. According to some critics, manipulating word order is the skill today's writing instruction for professionals most neglects; debunking the myth that the hanging preposition is ungrammatical endears these constructions to writers unmindful of word order.

Wayne Schiess (http://tinyurl.com/yab9ddj) gives an example of a sentence that should end in a preposition; compared to the stilted and verbose Sentence 1:

A lawyer attending one of my seminars offered a great suggestion of which I had never thought,

Sentence 2 is more natural and concise:

A lawyer attending one of my seminars offered a great suggestion that I had never thought of.

Has Wayne demonstrated that effective style permits commonly ending sentences with a preposition? No, the writer can avoid the hanging preposition's limpness, sound natural, and be more concise by thinking outside the verb, as in Sentence 3:

A lawyer attending one of my seminars offered a great suggestion I had never considered.

Developing legal theory in routine briefs

Conventional wisdom holds that only difficult or esoteric cases merit briefs which formally develop the law. The routine case, on this view, affords at most the opportunity to adjust the law to facts. Contrary to the conventional wisdom, routine briefs, even when the issues are procedural, often become more persuasive by arguing for original legal conclusions that address the dispute's essence. Lawyers hesitate to develop the law formally in routine cases because they anticipate that the court may reject the original legal analysis and imperil an otherwise solid case, but their objection overstates the difficulties in predicting judicial acceptance of the brief-writer's insights.

Legal insights are apt to clarify a routine procedural case when the facts relevant to the appeal are unusual, causing the relevant decisional law's underelaboration; a routine case can present unusual procedural facts when procedural posture makes appeal unlikely. In the following example of small-scale formal-law development, the summary judgment appealed was unopposed below, and a party shows unusual practical irrationality when it abstains below despite caring enough to appeal. Because of the dearth of case law on unopposed summary-judgment motions, no crisp holdings address what the appellant can argue after failing to file an opposition. I briefed my distinction between attack and rebuttal to arrive at the governing principles:

A defendant's prima facie case, when unopposed, can be attacked but not rebutted on appeal. Rebutting the prima facie case means asserting contrary facts; attacking the prima facie case means undermining the technical adequacy of the declarations, the substantive relevance of their content, or the sufficiency of the undisputed facts.

A distinction clearer than the unelaborated case law provides cleanly applies to the facts:

G argues that the "credibility exception"—which prohibits challenges to undisputed facts based on whether the court should believe the witness's declaration—is invalid, and abrogating the credibility exception, G says, would undermine the declarations supporting summary judgment, since alleged inconsistencies in the Ss' deposition and trial testimony would establish their evidence is incompetent. Disputing the undisputed facts with opposing evidence is rebuttal, not attack. Even without the credibility exception's prohibition barring G from creating disputed facts from mere credibility challenges, G would not have attacked Ss' prima facie case; he would merely have tried to rebut it.

Responding to Buckshot Briefs

Issue proliferation goes virulent to become buckshot briefing when the number of issues compels inadequate development of each. The proliferator of issues thinks he increases his chances of prevailing because he naively disregards the dilution of stronger arguments. The proliferator knows that if he prevails, it will probably be based on the arguments he knows are stronger, but he takes the attitude endemic among lawyers that risk is eliminable. The buckshot briefer, in contrast, knows he has little chance of prevailing and hopes to strike it rich by luck. The buckshot briefer typically can't identify his strongest arguments, since none are developed adequately.

A lawyer, as a rule, will file a buckshot brief only when two conditions are satisfied: he is prosecuting or defending a weak case, and he is unable to analyze the law and facts of the case competently. If the lawyer is defending a strong case, the benefits of developing the strongest arguments are manifest, and the buckshot case will rarely tempt. But even if the case is inherently weak, still the buckshot case is a bad strategy: the lawyer can do better by relying on the strongest arguments, however weak. Judges assuredly know these truisms, and the buckshot briefer will be subject to judicial disdain, to complicate his disputational debility.

The number of buckshot briefs submitted suggests the practice must carry some advantages. One advantage of the buckshot brief is it allows the briefer to offload his research responsibilities to opponent. Instead of researching the arguments to discard those that aren't supportable, the buckshot briefer includes any impressionistic argument and lets his opponent sort out the meritorious. This is the unavoidable burden of responding to a buckshot brief.

Filing a buckshot brief also burdens opponent with conceiving how to organize a coherent response to the disjointed submission. If he succeeds in enticing his opponent to oppose his buckshot brief with a buckshot response, the buckshot briefer will have leveled the field. A lawyer cursed with responding to a buckshot brief must impose a simplifying structure on the buckshot briefer's meanderings. He should structure the response to bring out the buckshot character of the brief without expressly having to dwell on it; the response should expose the implausible validity of the buckshot brief's simultaneous contentions. In responding to a recent buckshot brief, I introduced my structuring of the briefer's arguments this way:

G presents a buckshot case rhetorically emphasizing his right to equal protection of the law. He covers all bases: the court should have granted the continuance; failing granting the continuance, the judge should have submitted to G's peremptory challenge; and failing to prevail on his jurisdictional challenge to the court, G should have prevailed on the merits.

When possible, the best organization of arguments targets common assumptions of the buckshot arguments, but often arguments aren't merely presented in buckshot fashion; they really are disjointed. Deal with disjointed arguments by organizing the response around the soundest arguments. The responder shouldn't fall to the temptation of avoiding the strongest arguments because the buckshot briefer doesn't emphasize them.

The colon: When the explanation is more important than what’s explained

Each punctuation mark serves a core function, and usage should follow the core function whenever the rules governing that function are applicable. Disputed Issues has considered the core functions of several punctuation marks: The comma sets off nonrestrictive elements; the semicolon neutrally connects independent clauses; and the dash emphasizes matter tangential in its immediate context. Following the core functions means eschewing rules unrelated to the core function unless the core function is unrelated to the construction. To take the comma, usage guides sometimes state the rule that a comma doesn't set off an adverbial clause at the end of a sentence, but the restrictive - nonrestrictive distinction the writer should apply eviscerates the rule.

The core function is the main function for ordinary discursive text. The colon has a variety of uses, such as exemplification by lists, but the central discursive use of the colon is to substitute for a word like because to create a clause more central than the independent clause to which it would be subordinated. From the opposite end of the grammatical telescope, the colon demotes the independent clause to a parenthetical role.

Here's an example:

Density is audience relative: the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think.

Grammatically, an adverbial clause could substitute for the clause following the colon:

Density is audience relative because the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think.

The colon serves better than the adverb, since the matter in the because clause is more important than what precedes, which only creates a transition through a more general proposition; the more important propositions shouldn't ordinarily be subordinated to the less important. The clause following the colon becomes independent when the colon is substituted, but this happenstance doesn't affect the colon's usage; a subordinate clause can follow the colon, and the independent clause's significance would remain parenthetical.

The subtle distinction between “that” and “which”

Relative pronouns that and which, usually taken for synonyms, differ subtly in sense; distinguishing their uses improves Clarity. Professor Geoffrey K. Pullum, who seems to have first noticed the difference, challenges the that-which rule, whose proponents assume these pronouns mean exactly the same thing; Pullum observes which is used more for conveying new or indefinite information in the pronoun's relative clause and that for established or definite information, but he reports only a mild statistical trend. (See http://tinyurl.com/yjnhhc7) Pullum's basis for distinguishing that from which contradicts the that-which rule, most widely recommended, designed for copy editors' convenience. The copy-editor's solution uses which to start descriptive clauses, that for restrictive clauses; that's occurrence confirms that the writer intended no comma before the relative clause.

Either the meaning distinction between that and which isn't weighty — Pullum's apparent view — or Pullum has missed the distinction's essence by recognizing only a correlate. A more exact way to construe the this-which distinction applies which to parenthetical restrictive clauses, that to nonparenthetical ones. Since usage guides mistakenly equate "nonrestrictive" (or "descriptive") with "parenthetic," the notion of a parenthetic restrictive clause may seem nonsensical, but "parenthetic" and "nonrestrictive" name distinct linguistic properties only partly correlated. Restrictiveness concerns whether the modifier changes the reference class of the term modified; parenthesis concerns whether the information is incidental. Only parenthesis admits of degrees; only restrictiveness affects comma placement.

When instincts for pronoun choice fail, a writer can find guidance in the parenthesis test. Parentheses (the punctuation marks), like dashes, aren't confined to syntactic units. To apply this test, enclose the restrictive relative clause in parentheses. If the resulting sentence makes sense, then which is your choice, despite the absence of a comma. Here's an example of which being used restrictively but parenthetically.

An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive which yielded no offsetting gain for the extant inhabitants.

To test, rewrite as:

An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive (that/which yielded no offsetting gain for the extant inhabitants).

Since enclosing the relative clause in parentheses isn't illogical, which is the better relative pronoun. The information the clause conveys is marginal — figures as a mere qualification — even though the clause is restrictive.

The Forgotten Topic Sentence

Lawyers seldom design topic sentences deliberately; yet, explicit initial topic sentences demonstrably improve comprehension of difficult material through the cognitive mechanism of semantic priming, whereby concepts become more accessible after being activated when the reader entertains related concepts. Instead of using topic sentences, lawyers often avoid writing them by using trivial statements of dates and case names as substitutes (see http://tinyurl.com/rx3bth), since composing and revising topic sentences seems dreary work. (See, for example, http://tinyurl.com/qw2kzl.)

Most of the discussion of topic sentences — which occurs in the primary-education literature and in the deliberations of teachers of freshman composition — exaggerates the generality of topic-sentence usage. Without the aid of research, educators have long extolled the topic sentence as prerequisite for a proper paragraph. "Language Arts" instruction in the early grades goes further than recommending a topic sentence for every paragraph, calling for a "summary sentence" at each paragraph's end.

Students inevitably notice that, except in textbooks, paragraphs aren't nearly so regular, including paragraphs constructed by the best writers. Even when paragraphs contain strong topic sentences, some serve better at the paragraph's conclusion or, preceded by transitional sentences, toward the paragraph's middle. Students conclude that their searches for topic sentences in English classes serve as an exercise rather than a tool for paragraph construction; that teachers don't criticize the students' schoolday paragraphs for lacking topic sentences reinforces this conclusion. Like any exercise, the construction of topic sentences became a dreary business, and going beyond performing such exercises becomes a mark of the students' sophistication, of their adulthood as writers.

Teaching students a distorted view of paragraph construction is bound to cause disillusionment; so, writers must fashion a more nuanced view of topic-sentence usage. The distortion became apparent when the education world was rocked by Braddock's 1974 study, indicating that initial topic sentences rarely occur in the paragraphs of professional writers. Later research qualified Braddock's findings by showing that topic sentence usage among professional writers differs with the kind of writing. Researchers found that initial sentences vary in their closeness to the educators' idealization and are classifiable into two broad types: natural topic sentences and ideal topic sentences. Natural topic sentences lack some of the characteristics of classic topics; they serve as point sentences instead of tertiary thesis statements. Ideal topic sentences are those still taught in the schools; each states a claim supported by the rest of the paragraph. Ideal topic sentences grow more useful with the material's difficulty.

An ideal topic sentence doesn't best serve every paragraph. Sometimes an explicit topic sentence will be too heavy handed if a measure of subtlety is called for; sometimes a paragraph will already be so cohesive that inserting an ideal topic sentence detracts from the paragraph's effectiveness; sometimes a topic is better placed somewhere besides the initial sentence. Despite their lack of universal application, topic sentences are particularly important in writing legal briefs, where unnecessary subtlety is misplaced. A brief dealing with complicated substantive law greatly benefits from using ideal topic sentences. On matters where the judge can be presumed knowledgeable, natural topic sentences may avoid the appearance of condescension, but natural topic sentences still require revision — often, reorganization of the sentences — so they correspond to their paragraph's content.

Overzealous Concision: Density

This article under its subhead "Embrace prose and avoid terse [read, dense] writing" describes what I mean by "density":

This piece of advice is a reaction against the Bourbaki style ... [of explaining] as little as possible in order to give the tightest presentation possible. ... [I]t is also very hard to read ... an altogether unpleasant experience unless you already know the subject matter and just want to review, not really learn a new subject. ¶ ... Explain ideas fully and clearly. ... [D]o not shy from writing more in order to explain more.

Writing more to explain more is advice unlikely to help a lawyer, who is prolix more often than dense. Writing can be at once prolix and dense, but dense writers usually strive for expository elegance, like the Bourbakis in math. That inverse relationship between prolixity and density — only a trend — shouldn't obscure the different causes of the two mistakes. Nor should the observation that dense writing uses too few words and prolix writing too many. The prolix writer overexplains and the dense writer underexplains, but each is a symptom of a different kind of problem, not the same problem or the opposite one.

Prolixity is actually related to redundancy: prolixity amounts to partial redundancy. A redundant expression repeats identical information; prolix verbiage adds what is practically irrelevant, leaving the reader with nearly identical information. The redundant writer is blind to the repetition, as the prolix writer is to the near repetition. Prolixity comes from a failure of linguistic insight.

Density comes neither from failed linguistic insight nor, of course, its overabundance. Rather, it involves failed psychological insight, in that the dense writer doesn't take the reader's perspective. Density is audience relative: the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think. For an audience of experts, a writer will forgo defining some technical terms, but explanations that organize and activate relevant knowledge help every reader.

(See also related entry Misguided Concision: Terseness.)

Unique style: expressive or substantive

Often in discussions about writing excellence, the point is made that the best writers have a unique style. Little is said to describe the contours of this style. Style has been the subject of previous entries, which define styles as tradeoff patterns among writing Virtues, but the unique styles don't mean tradeoffs skilled writers purposefully modify. "Unique style" refers to something else, but what?

Some treatments, sporting a touch of New Ageism, call this unique style the writer's "voice." These authors promptly add that voice identifies a writer like fingerprints identify ordinary persons. So is it like a voice or like a fingerprint? They're not the same. Only a universal truth about fingerprints, the absolute uniqueness of each, lends them the least interest to most of us. We usually don't even bother to form an opinion about whether one's fingerprint is attractive, more-than-usually unique, or in other manner worthy. Not so with voice. While no aspirant lands a job because of the aesthetics of his fingerprint, the aural media demand vocal qualities, innate and trained. Some voices are more attractive than others, and their attractiveness is independent of the utterance's content, the assessment part objective, part subjective.

Is a writer's unique style a voice or a fingerprint? Surely if this unique style exists, it resembles voice. Unlike a fingerprint, it obtrudes itself; we can't avoid the writer's style. If in contradiction, unique style turns out to be some subtle, technical variance, then we may avoid noticing it — hardly surprising, as it becomes irrelevant. Rather than being like voice, style would have the uniqueness of handwriting in a future civilization where none use this skill.

To the contrary, style obviously matters, yet seems impossible to define in a way keeping the supposed unique and involuntary character. Unique style is supposed to be an expressive quality that becomes more pronounced as the writer skilled. If unique writing style existed, the best writers would suffer scorn for freakishness, not only win acclaim for uniqueness. Any distinctive "voice" can annoy, will annoy someone. Yet, we find no literary critics who simply despise Shakespeare. Shakespeare's distinctiveness, we can conclude, doesn't derive from a unique writing style.

Opposed to these expressive accounts of unique style, an author's unique "style" should be conceived as intellectual style, not anything inhering in sentence or paragraph composition. Writers come to identify their intellectual strengths and learn to exploit them. When a writer settles on a style, he adopts a set of approaches to intellectual (or literary) problems.

Misguided Concision: Terseness

Concision is the supreme writing Virtue, but that doesn't mean its pursuit is never misguided or overzealous. Terseness, today's topic, is the misguided variant of false Concision; density, a future topic, is the overzealous variant.

I take the term "terse" from Wayne Schiess (http://tinyurl.com/lsfkbm) to describe misguided Concision because the example he supplies is paradigmatic, and the term evocative, despite the usage being nonstandard. The sentence Wayne describes as terse is: "One of the most prevalent defenses at trial is compliance with [Federal Motor Vehicle Safety Standards]." To display the sentence's "terse and awkward" character, Wayne points out that the skeletal sentence is "The defense is compliance." While the standard senses of "terse" are polished concision and laconic brusqueness, Wayne's meaning accords with etymology: rubbed away. A sentence like this impresses as having rubbed away too much.

Wayne rewrites the sentence, "One of the most prevalent defenses at trial is that the vehicle complies with the Federal Motor Vehicle Safety Standards," but why is this improvement — how does more Concision become outright error? If you're like me, your first thoughts will go to Euphony because of the sentence's "awkwardness," but terseness offends against Euphony only secondarily, the awkwardness rooted in a lack of Clarity. Consider that "the defense was offense" isn't cacophonous — clichés usually are Euphonious — but when "defense" can equate with "offense" both terms denote actions, such as plays in a basketball game. A legal defense isn't an action but something alleged, a proposition, and we express propositions with that clauses. You cannot coherently equate a proposition, a legal defense, with an act of compliance. "The defense is compliance" is formally incoherent, expressing a category error.

The error is similar in origin to excessive passive-voice usage in both errors' coming from a writer stuck in a point of view, instead of orienting to the reader's. Terseness comes primarily from applying the telegraphic speech involved in thinking to the activity of writing, but idiom can dull writers' sensitivity to terse-writing's incoherence. We commit category errors without embarrassment when idiom sanctifies them, but Wayne's correction, not the terse statement he corrected, agrees with both logic and legal idiom. The "terse and awkward" sentence is that way because neither coherent nor idiomatic.

(Related entry — Overzealous Concision: Density.)

The epistemology of passive and active voice

Much editing consists of changing passive to active, but — if active voice is more direct, simple, and natural, as often claimed — why does the untutored writer naturally use the passive? Understanding the reason a tendency exists is part of controlling it; understanding helps discount or modify our writing instincts, but I've seen no explanations of the passive voice's pervasiveness in much bad writing.

Untutored writers overuse the passive voice because the passive word order corresponds to the events' order in knowledge acquisition. Temporal beings, we are stuck in the present: only present events impinge on us directly. From our present perceptions we mentally reconstruct the past and project the future. When we rely on memory, the rememberings pertaining to the past occur in the present. From memory traces in the present, we figure out what happened in the past, whether we accomplish this reconstruction consciously or unconsciously.

The passive voice, which starts by positing current perception, mirrors our path to knowledge. To transform the passive to active, we must carry our starting point in working memory, instead of writing our thoughts as they occur. Active voice isn't more direct, not when we are reporting our thought processes leading to a conclusion, and in documents concerned with the process of discovery, as in reports of scientific experiments, the appropriateness of the passive is recognized by everyone but a few plain-English exponents. A simple example shows how the passive voice mirrors the knowledge-acquisition process:

The Jacksons's house was wrecked.

To acquire this information directly, we look at the house, and this we can do only in the present, despite the vandalism's occurring in the past. From the perception of the wrecked house in the present, we infer that it was wrecked in the past. The natural way to record our thought process is first to posit the house and then the results of our inspection. To make it active, "A vandal wrecked the Jacksons's house," we must start with a distant result of our inference, carrying the starting point in memory.

Now a more complicated legal example (from Bryan Garner's The Winning Brief, Tip 30, Example B, p. 159):

To support a trespass action when the injurious acts complained of were not actually committed by the defendant himself, the person who committed the acts must be either employed, paid, or controlled by the defendant in order to hold him liable.

(Garner rewrites this sentence "For the defendant to be liable in a trespass action when the defendant did not personally commit the acts complained of, the defendant must have employed, paid, or controlled the person who committed the acts.")

The lawyer starts from perception of the complaint's allegations of injurious acts and, by reasoning from the complaint's language, deduces that the defendant didn't commit them. The lawyer then proceeds to look for agency allegations regarding the trespassing person. The natural and direct way to record this analysis starts with the "injurious acts complained of," creating a passive-voice construction.

If the active voice isn't a more direct report of our thoughts, what recommends its use? The basic reason is the passive-voice's verbosity. The flabbiness of passive-voice writing comes not from its lack of directness or naturalness but from an excess of verbiage compared to the more concise active voice. The guideline to favor active over passive quests for Concision.

Pinball wizards and archers: A contrast between trial and appellate work

I offered a pinball analogy for trial work in another blog, where I claimed good trial lawyers must sometimes push to the limit of the court's tolerance, just as a pinball wizard seems to risk tilting. Pinball and trial work share a structure that creates incentives for limit-seeking performance: both measure sanctionability and performance by standards independent of one another. If the pinball player comes close to tilting, his near tilts don't subtract points from his score. Similarly, the judge determines whether a trial lawyer has committed misconduct, whereas the jury ordinarily determines the outcome, and the judge's displeasure doesn't automatically affect the jurors' opinion.

One additional way appellate work differs from trial work, then, is that the same decider evaluates appellate counsel's conduct and the case's strength using overlapping standards. Limit seeking would undermine the appellate counsel's purpose because it would decrease his moral credibility. In contrast to the limit-seeking performance of the trial lawyer, the appellate lawyer's performance is ideal seeking. The appellate lawyer doesn't win by barely avoiding misconduct but by impressing the court with integrity, knowledge, style, and rationality. The appellate lawyer may be likened to an archer; he obtains his goals by approaching an ideal of perfection, not by pressing to the limit of tolerable deviance.

Many typical legal-writing errors come from applying a limit-seeking model to an ideal-seeking task. (Errors in trial work often seem to derive from the reverse confusion, but that isn't our subject.) Emotionalization is often a limit-seeking tactic, as are character attacks on opposing counsel. Even excessive length comes from a limit-seeking mental set. Law and motion attorneys confuse the standards more often than appellate lawyers because law and motion attorneys are often trial attorneys, but inherent confusion about the nature of law-and-motion work complicates matters further. Law-and-motion work may seem to involve two separate deciders, the trial court deciding the motion and the appellate court applying procedural standards. In most courts, the judges have internalized the court hierarchy enough that the appellate court and the trial court aren't roughly independent. In courts insulated from appellate review, limit-seeking performances sometimes pay off.

The semicolon and expectation’s equipoise

(Second and final entry in the semicolon series.)

Freer semicolon usage would help stem the promiscuous spread of artificial connectors, an assault on Concision. It would also contribute to Clarity by simplifying the representation of expectation neutrality, since and and but represent positive and negative expectancy of the following independent clause; but you may wonder when expectations are ever precisely neutral. The most important circumstance where a writer wants to represent the expectation as neutral occurs when the first clause expresses both a positive expectation and a negative expectation; the writer wants to avoid seeming to prejudge which is the stronger.

Oliver Wendell Holmes Jr. used the semicolon with great precision in his famous epigram, where the first clause expressed positive and negative expectations:

We do not inquire what the legislature meant; we ask only what the statute means.

Holmes renounces a purposivist approach to statutory interpretation but intends the implication to elicit surprise, greatest when a correlation obtains neither positively nor negatively. Holmes can create a sense of surprise because the renunciation carries two implications or expectancies: to interpret the text instead of interpreting the legislature's will or to renounce interpretation altogether. Logically, Holmes might have said instead: "We do not inquire what the legislature meant; we ask only what the legislature should have said."

A legal writer who uses semicolons with unusual effectiveness is Judge Richard A. Posner in The Economic Analysis of Law:

Generally, specific performance (ordering the party who breaks his contract to perform, on penalty of being held in contempt of court if he does not) will not be ordered as a remedy for breach of contract; the promisee will have to make do with damages, as suggested in the Holmes dictum quoted earlier.

(The Economic Analysis of Law, p. 117 [reference to Holmes coincidental].)

Here you can see the same pattern as in the quote from Holmes. The policy-of-denying-specific-performance clause activates two opposed expectancies: that another remedy will replace it or, alternatively, that none will; a different remedy or no remedy at all.

The underutilized semicolon

The semicolon, long in decline, may be in renewal, but it remains rare in its central use: replacing a comma and coordinating conjunction to unite two independent clauses. Current pedagogy tells us that the semicolon represents a bigger break than the conjunction and a smaller break than period. Could this account have caused the semicolon's decline, as we increasingly relied on written accounts for rules of mechanics? Can writers really classify the degree of logical connection of clauses into as many as three distinct categories? Most people have a hard enough time with only two. Plain-language exponents of short sentences instruct to break off a sentence when it becomes "too" long. Does anyone expect ordinary people or even skilled writers to divide degree of connection between connected thoughts into three neat, objective compartments? Even if the compartments existed in an objective sense, our mental powers may be too weak to distinguish them.

Guided by finding an interval greater than a comma but less than a period, writers reasonably choose not to apply voluntarily an intermediate standard as ephemeral as clear-and-convincing evidence, a standard so unintuitive people apply it only when serving on a jury under court order. If the semicolon had vitality before people relied so heavily on formal explication, people must have used a different criterion, either in addition to or in place of the intermediate-pause account. The real vitality of the semicolon — the best way to use it — depends on the need for a neutral connector rather than an intermediate pause because to show a connection between ideas facially we rely primarily on two coordinating conjunctions, but and and. But combines logical conjunction with contrariety. When you encounter but, the writer implies that hearing the first clause would ordinarily decrease your expectation of hearing the second. It seems natural to assume equivalence between and and logical conjunction: but stripped of its contrariety. So assumed, and is the generic connector, but the negative-expectation connector, and no positive-expectation connector exists. And may not be quite as positive as but is negative, but and is positive, not generic. Otherwise we would have to choose more carefully between and and but whenever but applies.

The semicolon is the language's neutral connector. Use it to connect ideas directly without implying either positive or negative expectation of what follows.

(Next entry I'll discuss the main circumstance in which expectation neutrality is important.)

The art of exegesis and the demolition of unintelligible arguments

Sometimes a key argument in an opposing brief or a reviewable judicial opinion is largely unintelligible. One way of attacking such an argument is simply to assert its unintelligibility, but what if the court disagrees? A related disadvantage of simple assertion is that even if the entire argument is unintelligible, the parts may not be. When only the parts are intelligible, attorneys are likely to respond to the parts and ignore the unintelligible whole, an approach that doesn't remove the risk that the judge thinks the whole does have some meaning you missed.

When unintelligibility is found, usually the poor reasoning in the attempt at argument causes it. The lawyer responding to such an argument should not pass up the opportunity to demolish the poorly reasoned argument, a more effective response than declaring it unintelligible. Demolishing the argument discredits it and helps prevent its resurrection by improvement, and the judge will be more satisfied to have a sense of understanding the intended argument than merely dismissing it. When the judge's interpretation is overly charitable, you can supplant the judge's interpretation of the argument with a well-reasoned exegesis of an opponent's or lower court's argument .

The following argument comes from a judge's order in a State Bar discipline case where the prosecution is trying to disbar Philip E. Kay for disobedience to court orders. California State Bar cases are an excellent source of examples of terrible writing and even worse logic. The paragraphs I'll quote served to oppose Kay's claim that the State Bar withheld exculpatory evidence relevant to the statute of limitations. The evidence was from testimony in a federal suit on employment issues by a former state bar prosecutor (Konig). Here are the paragraphs:

In general, a prosecutor's opinions and impression of the case are not discoverable under the duty to disclose exculpatory evidence respondents assert that the Konig federal lawsuit contains conclusions of individual prosecutors that is at odds with the State Bar's position in this case, specifically referencing statements that judge Anello was a complaining witness in this case. However, the issue of whether Judge Anello was a complaining witness was not relevant in either the Konig federal or state cases. Moreover, witnesses must testify to facts and not their opinions or conclusions. Likewise, the use of slang is not evidence. Further, it is the opinion of the Office of the Chief Trial Counsel and not individual prosecutors that matters.

Even experts usually may not testify as to questions of law. That is, the opinion of a witness on a question of law is generally incompetent and inadmissable. Likewise, individual prosecutors cannot testify as to their individual opinions and conclusions regarding the law in a matter they were involved in; and respondents have no right to the prosecutors' individual opinions and conclusions. Nor are they relevant.

The bar-court's paragraphs are a mess, as revealed in the transitions, which strive to give the impression of logic while flouting it. Separate arguments are tied together with "however" and "moreover" without demonstrating the corresponding logical relationship between them. Since the paragraphs seem to express no unified argument, the confused argument tempts attorneys to ignore the argument as a whole and respond to each of the separate claims, such as the one claiming Judge Anello's status as a complaining witness wasn't relevant in the cases Kay wants to access. Kay could respond that Judge Anello's status as a complaining witness was relevant in the federal case because the district court stated in its conclusion that Anello was the complaining witness. I don't quarrel with that argument, but it isn't the central point to be made in response. To construct the most effective opposition, one should first figure out what the State Bar is really saying.

Helping the State Bar substitute a coherent meaning for the quoted confusion isn't doing the State Bar a favor. The State Bar applies rules prohibiting use of opinions of individual prosecutors to support conclusions about which opinion is correct, meaning if the State Bar officially characterized Judge Anello as not being a complaining witness, you cannot counterpose the opinion of specific prosecutors as authoritative or as true. The rules the State Bar tries to invoke are analogous to the hearsay rule, which states that second hand statements cannot serve as evidence for their truth. Similarly, the opinions of prosecutors cannot be invoked to prove their truth, but Kay didn't unseal the Konig records to prove that Judge Anello was a complaining witness because prosecutors said he was but to prove facts, such as his role in charging Kay, that implied he was. The same facts are circumstantial evidence that, contrary to what the State Bar claims, it regarded him as a complaining witness. The key to undermining the State Bar Court's argument as a whole is exhibiting its central mistake and analogizing it to a misapplication of the hearsay rule.

Comma Logic: "Parenthetic" versus "Nonrestrictive" Elements

One can never be too clear on the logic of the comma. Common grammar advice seems partly responsible for the confusion. Many guides state a rule that commas should set off parenthetic elements and a separate rule that commas set off nonrestrictive clauses and phrases. Occasionally the guides equate nonrestrictive and parenthetical; commonly, they imply that parenthetic elements are a subset of nonrestrictive elements, but although parenthetic elements and nonrestrictive elements overlap, even seeming to coincide, the distinction expresses different bases for categorization.

Restrictive versus nonrestrictive distinguishes categorically based on the way a modifier affects the meaning of the term modified, the modified term either restricted in scope or not, but parenthesis means "a remark or passage that departs from the theme of a discourse: digression." (Merriam-Webster's definition 1(b); I exclude 1(a) because it incorporates punctuation, the explanandum.) Parenthesis is a continuous rather than categorical concept, and it describes the pragmatics of usage rather than its semantics. A parenthetic element is parenthetic because it digresses from the writer's main line of thought.

Following these definitions, restrictive parenthetic elements and nonrestrictive elements nonparenthetic are possible. A parenthetic element that is restrictive digresses from the writers thinking yet changes the meaning of the modified phrase. A non-parenthetic non-restrictive element follows the writer's train of thought but changes the meaning of the modified phrase. Nonrestrictive/parenthetic and restrictive/nonparenthetic tend to correspond, but the correlation is only partial.

So what are examples of restrictive elements that are parenthetic?

Forgetful doctors who were uninsured because they neglected to mail their premiums suffered as much as doctors who intentionally stopped their coverage.

Imagine this sentence appears in an article extolling the importance of obtaining insurance. The relative clause departs from the main line concerning objective importance by elaborating on a cause of failing to obtain insurance.

And nonrestrictive elements that aren't parenthetic?

In one case the doctor, who failed to procure medical-malpractice insurance, became indebted for three million dollars when he lost a lawsuit.

The relative clause is more related to the main thought of the article on insurance's importance because without it the insurance theme is absent from the sentence.

Some readers will disagree with the classification; parenthesis as concept is vague because the distinction is partly subjective. The subjectivity of parenthesis combines with the concept's fuzzy boundaries to disqualify parenthesis as a basis for punctuation.

The Essential Outline

Writers create outlines for two main reasons: 1) outlining allows a writer to focus on listing thoughts at the lowest organizational level and on the quasi-inductive creation of categories, and 2) outlining allows a writer to focus on the highest level of organization and on the quasi-deductive elaboration of progressively lower levels. The first reason is only heuristic, and other devices may substitute; the second reason is essential. Lawyers don't usually share nonprofessionals' phobia of outlines, as they've built complex outlines in law school, where creating a personal course outline is part of the study ritual. Yet surprisingly many lawyers don't use outlines for complex appellate briefs, while some rely on outlines too much. Characteristic symptoms reflect insufficient outlining, others, overreliance on outlines, and knowing these consequences provides another perspective for evaluating a ghostwriter.

Headings serve as categories for segregating text, but devising logically exclusive headings usually requires focusing on them with and without the accompanying text. Lacking an outline the writer's ad hoc headings won't be mutually exclusive. Burdened by overlapping headings, legal writers who don't outline repeat content. Repetitiveness is the worst effect of forgoing an outline.

A brief should be organized around precise and evocative headings, which serve as signposts in the document's body and as summary in the table of contents; the second major problem linked to lack of outline is poor relatedness between headings and text. Lower level headings should cohere with the headings above and the text beneath and be parallel to other headings at the same level. A longer brief won't cohere without initial planning and subsequent adjustment, both best accomplished in an outline.

One overuse of outlines treats them as forms: transitions between sections are ignored. When a document sounds like an outline, the author probably seldom actually wrote, only outlined and transposed authoritative paraphrases or quotes. Since we accomplish much of our thinking in trying to express it, the overoutlined brief often underanalyzes.

The last form of overuse of outlines is when the author thinks of the headings exclusively in relation to the outline, not in relation to the text beneath the headings. Such an outline will be organized according to some predigested formal scheme, which doesn't make best use of headings. If a cause of action has three elements, the writer might organize the brief around each of them. He achieves logical tightness and mutual exclusivity in the outline, but he isn't telling the judge anything new. Headings should carry valuable information, not legal formulas the judge already knows. Facts should be woven through the headings, so they tell the judge what's most important in your argument, not what an argument of the kind must perforce accomplish.

These flaws are useful checkpoints, regardless of whether outlining problems caused them, but outlining problems account for their frequency.

Appraising “Strunk and White”

Strunk & White's ("Elements of Style") fiftieth anniversary caught linguist Geoffrey K. Pullum's wrath. (See http://tinyurl.com/dhc2sh) Pullum isn't entirely fair in his criticisms, often because of his distaste for the authors' stating their advice absolutely. Pointing to the literal impossibility of omitting all modifiers, Pullum derides "use active voice" and "write with verbs and nouns, not adjectives and adverbs." Pullum's point is that the literal advice is misguided; qualified advice, vacuous; and admonished advice, incoherent. His criticism reminds of the legal-realist mockeries of the interpretive canons, and the same rebuttal applies: defeasible rules aren't necessarily vacuous or contradictory. Strunk & White understood the active-voice passive-voice distinction and merely mentioned a related distinction between connective verbs and transitive active verbs. Where critics find Strunk & White ignoring its own advice, they could more charitably construe this inconsistency as having a point many critics endorse: style and even grammar rules are at best only guidelines.

Descriptivist linguists act paradoxically when they criticize a recommended rule as "wrong," but the unquestioned acceptance of some of the Strunk & White "rules" has harmed usage. Even Bryan Garner — not to speak of Wayne Schiess — continues to advocate a rule that would deplete the language's expressive power: the that/which linkage to nonrestrictive and restrictive modifiers, a rule announced by Strunk & White. What arouses the somewhat misplaced ire of the book's vehement critics is the misuse to which others have applied it. The work has been transformed from a teaching aid for inexperienced writers into a battering ram of the incompetent against those who have outgrown Strunk & White's strictures. Ascending to administrative, educational, and editorial posts, the mediocre exploit the stark absolutism of the rules understood without the qualifications in the text following. One or another rule may be purveyed as a writing panacea. The recommendation to prefer the concrete to the abstract is turned into a condemnation of abstraction, by persons afflicted with excessively concrete thought. The book's commitment to the attic style may be taken to preclude other styles, rather than as a stage in writers' development.

To objectively assess Strunk & White, we should distinguish the work from its use by epigones. Too simplistic to serve today as general style guide or text, Strunk & White in its succinctness can sometimes help experienced writers re-activate a mental set incorporating its theme of syntactic transparency.

Attractive Fonts for Hard Cases

Lawyers care much about some Facets of document Attractiveness and little about others (See "Effective Writing: The Big Picture" for definitions of the Virtues and their Facets): lawyers who haven't devoted a thought to font selection would never consider submitting a strikeout, which decreases Neatness and affronts a formality. Lawyers don't think about fonts because when designing the appearance of documents lawyers worry instead about breaching formalities. Lawyers dread violating some formality they are unacquainted with, a professionally humiliating experience. To give the profession its due, breaching a formality has consequences worse than filing an Ugly document.

Document aesthetics are most important when your case is weak on the merits. Improving the Attractiveness of a document is one of the few ways to appeal to a judge's emotions; the other is Euphony. With a weak or unpopular case, you desperately need to create favorable associations. Augmenting Euphony means making a difficult turn toward the asiatic style. Fortunately for hard cases, most lawyers can easily augment briefs' Attractiveness, so lacking in aesthetic sensitivity is lawyerly composition.

Most lawyers can improve even Clarity significantly by a simple font change, substituting Century Schoolbook (New Century Schoolbook on Macintosh) for Times New Roman or Times. The remedy for Ugliness involves two font changes to improve Novelty and Pattern by using distinct font families for headings and body text. Choosing compatible combinations calls for some study, thought, or advice. Although you will often read the conventional recommendations to use serif fonts for body text, the data indicate the absence of consistent Clarity differences that depend on complicating the end stroke of letter and numeral.

Here are some striking yet professional combinations of serif body text and sans-serif headings:

Corbel for headings; Constantia for text. (Microsoft fonts: download a trial of Microsoft Publisher in Office 2007, and keep the fonts.)

Century Gothic for headings: Century Schoolbook for text.

And sans-serif body text and serif headings:

Zapf Elliptical (also called Utopia) for headings; Zapf Humanist (Optima) for text. (WordPerfect fonts: similar acquisition techniques apply.)

Serifa for headings; Univers (Zurich) for text. (WordPerfect fonts.)

Grammar and Judges

A reader asked whether I thought judges themselves knew the grammatical and mechanical rules I discussed in the last entry; even if they know, do they care? No, most don't know, and those who do don't care a bit. The importance of punctuation isn't to have the judge give tacit points for good grammar but to allow the judge the greatest understanding of your argument. Proper comma usage aids comprehension by setting off modifiers less directly related to the main message.

Sometimes failure to properly punctuate creates ambiguities. When nonrestrictive adjectival clauses beginning with relative pronouns like who, that, or which aren't set off (or restrictive ones are set off) the meaning the sentence conveys is not only confusing; it's quite wrong. Think about the miners who worked beneath the surface in the last entry and the distinctly different meaning that results from adding a comma. The creation of ambiguities when you wrongly punctuate relative clauses is another reason, besides cognitive ease, that teachers emphasize adjectival clauses.

Adverbial clauses don't create the same ambiguities because the initial words of adverbial clauses, like because, since, where, or when, always have the same grammatical role when they have the same sense: since introduces a restrictive clause in its temporal sense and a nonrestrictive one in its causal sense. At worst, incorrectly punctuating a since clause creates only semantic ambiguity, which the writer failed to enlist punctuation's aid to resolve, not relative-clauses' structural ambiguity.

Incorrectly punctuating adverbial clauses doesn't ordinarily create ambiguity, but it confuses the reader for other reasons. Consider this sentence from the preceding entry:

If someone asks, "Did the miners die, since the employer spent too little on safety" when employer underspending wasn't the reason, the question should elicit denial only of the "since" clause, not the whole statement.

More than a single punctuation error could mar this sentence, but I want to focus on the effect of incorrectly placing a comma after safety and before when. An adverbial clause introduced by when is usually restrictive, as it is above. Inserting a comma after safety causes the reader's brain to try to interpret what precedes when before reading the rest. The effort is misguided because the if clause speaks of the effect of someone's act of asking only on the condition that the employer's underspending wasn't the reason for disaster. A comma before when generalizes the conditional relationship. By triggering the wrong interpretive strategy, the writer risks confusing or at least delaying the reader.

Attorneys must overcome being conditioned in grade school to think of correct usage as a way to impress readers or avoid embarrassment. Law-firm partners will often incompletely extinguish their early conditioning because they aren't pressured to understand briefs under tight deadlines, and they are apt to speculate about whether correct syntax and mechanics "look right" or whether the judge will mistakenly think right is wrong. Judges theorizing about what judges care about make this mistake — one hopes referring to other judges' reactions — as when Justice Scalia suggests avoiding contractions because of a some judges' possible disapproval. Judges lack the time or interest to correct attorneys' grammar. Safer to give judges what they need than what they say judges want.

Logical grammar: Restrictive and descriptive modifiers clarified at last

Part of the answer to why lawyers don't perform various writing tasks correctly is that many don't know how. Hyphenating phrasal adjectives? How many lawyers can identify one? So norms develop that hyphenation doesn't look right. Understanding phrasal adjectives isn't vital, but to know if your ghostwriter punctuates correctly you must understand the distinction between restrictive and nonrestrictive modifiers. Grammar textbooks emphasize applying the distinction when the modifier is a clause starting with a relative pronoun, such as who, which, or that. Adverbial clauses, starting with words like when, since, because, if, are harder, and their difficulty may be the reason the textbooks apply the distinction to adverbs less often. The rule is the same whether the modifier is adjectival or adverbial: restrictive clauses are not set off by commas, whereas restrictive clauses are. A major exception is that longer initial clauses and phrases are set off, even if restrictive.

I'm going to discuss some of the harder-to-classify adverbial clauses. The pedagogical principle is that the basis for categories becomes clearest at their edges. I don't know that every authority assents to my classification, but if you attend to my logic you will grasp the distinction between restrictive and nonrestrictive (sometimes called descriptive) modifiers, and you can then judge whether your ghostwriter gets it right most of the time. The test is: does the modifier make the set of objects or actions that satisfy the term as modified a proper subset — a subpart — of the set of objects or actions that satisfy the unmodified term?

The miners who worked beneath the surface died in the accident.

An easy adjectival example to start, the unpunctuated clause beginning with who is restrictive. The only miners who died in the accident were the ones who worked beneath the surface; some didn't die.

The miners, who worked beneath the surface, died in the accident.

The same phrase becomes nonrestrictive. You start with miners and don't reduce the number of them who died by another criterion: whether they worked beneath the surface. You are talking about all the miners, not a proper subset, and offering further description of them without limiting the number being considered.

Now let's look at some adverbial clauses, which are harder and will cement the distinction. The first one starts with because.

The miners died because their employer cut spending on safety measures.

The adverbial clause beginning with because modifies died. Does it restrict or merely describe the meaning of died? It restricts it because the statement limits the deaths that make the sentence true to those caused by the employer's cut in safety spending. If the miners died but their deaths had nothing to do with decreased safety spending, the sentence becomes false. Clauses beginning with because aren't usually preceded by commas because they are restrictive adverbial clauses.

Consider an adverb with much the same meaning in one of its senses as because, since. This one is very hard. Take the same sentence, replacing because with since:

The miners died, since their employer cut spending on safety measures.

Although this sense of since means much the same as because, it differs subtly. If the miners died for a different reason, denial of the because sentence speaks truth. If the miners died because the country was at war and the enemy bombed the mines, then the correct answer to "Did the miners die because of withheld safety spending?" is no, but what is the answer to: "Did the miners die, since their employer underspent on safety"? The since clause doesn't state a restriction on the acts of dying that count for the sentence's truth. Merriam Webster's supplies because as a synonym for since but defines the relevant sense as "in view of the fact that," whereas it defines because as "for the reason that." The assertion that the miners died because... imparts the reason for their death and is false if the reason is wrong. The assertion that the miners died since ... asserts a background fact that is a presumption underlying the sentence's utterance. If someone asks "Did the miners die, since the employer spent too little on safety" when employer underspending wasn't the reason, the question should elicit denial only of the since clause, not the whole statement. The relevant miners remain the same set. Since restricts the circumstances in which the sentence is meaningful, but it doesn't restrict the relevant miners.

One final example. Consider it your final exam. Is an adverbial clause beginning with if restrictive or descriptive?

If the boss had spent more, the miners would still be alive.

Restrictive; a comma follows because it starts an initial clause. The sentence is true only if the miners' lives depended on the spending.

Now all readers can follow the discussion about punctuation.

Hyphenating compound adjectives: Reconciling legal writing with professional writing practices

Style manuals decree writers must hyphenate most phrasal adjectives when they precede the noun the phrase modifies, but many lawyers don't know the rule; many who know reject it. (See Shannon's comment.) An example of a controversial phrasal adjective occurs at the end of the third paragraph:

requires time-consuming semantic processing.

Some lawyers say the phrase needs no hyphen because time is a noun, and one would never think it modifies processing, but a writer who guesses what "no one" thinks exceeds his expertise. Time may usually be a noun, but in time-consuming time functions as an adverb. In my example the hyphen avoids a different ambiguity that time is the object of requires: requires time...to consume semantic processing.

Bryan Garner and Wayne Schiess agree that with the standard exceptions phrasal adjectives should be hyphenated, but Sasha Volokh argues for punctuating only as necessary to avoid probable ambiguity, not a hypothetical one. I disagree with the three authorities. Garner and Schiess give insufficient weight to the opinions of some competent legal writers who often omit hyphens, and Garner and Schiess don't identify unneeded punctuation as redundancy. Volokh qualifies the hyphen rule but on the wrong basis. Volokh thinks that the hyphen wastes white space when the adverb can't plausibly be an adjective modifying a subsequent noun, but miscue isn't the only problem with omitting hyphens; the more common problem is delay. Omitting the hyphen delays informing the reader of what the adverb modifies until the reader reaches the noun. Then the reader's brain must engage in time-consuming semantic processing before concluding whether time modifies consuming or a subsequent word. In the example the reader must reach beyond semantic to processing before parsing the phrase.

Against Volokh's commonly encountered position that writers should omit hyphens when miscue is improbable, what allows omitting the hyphen isn't that the adverb can't plausibly be an adjective but that it very plausibly is an adverb, creating a self-contained phrase, such as high-school student. Even a self-contained phrase isn't usually enough to warrant omitting the hyphen. Most self-contained phrases should be hyphenated because the stock meaning won't necessarily be salient for all readers; a high school student could be a college student on drugs. The set of self-contained professional phrases, terms of art, such as summary judgment motion or municipal code violation, are the true exceptions to the phrasal-adjective rule, not only because of audience uniformity. When one of these phrases occurs in a document, repetitions often abound, so once a summary judgment motion features in a case the writer will probably mention it again. Repetition compounds the redundancy of hyphens and adds disproportionate clutter.

Do professional writers who obey the Chicago Manual of Style or similar guides know how to edit law documents better than professional legal writers? The style guides envision writing to a broader audience. Despite some plain-language advocates' exaggeration of the similarities, writing for lawyers sometimes differs from writing for educated nonprofessionals.

Black-letter briefs

The overstatement that incurs courts' distrust doesn't always bespeak inferior writing skills. Legal confusion or misdirection about rules in relation to public policy usually nourishes overstatement and is sometimes its direct cause. Many attorneys mistake a phase of legal argument—applying rules to facts—for the entirety. The resulting lopsided analysis ignores the adjustment of rules to public policy in an integrated legal system, where individual rules have only limited autonomy. Oliver Wendell Holmes Jr., author of the most memorable statement favoring interpreting plain legislative texts, as opposed to legislators' subjective intents—"We do not inquire what the legislature meant; we ask only what the statute means"—did not, like latter-day textualists, reject legislators' broad purposes, only their narrow intents. Holmes describes the decisive role of policy:

The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient to the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. (Holmes, The Common Law 35-36 (1881) [quoted by Aldisert, infra, at p. 4)].

Since rules must be mutually reconcilable, a change in how courts conceive one rule influences how they construe and apply even distant others. Changing a law pulls public policy in its direction and also leaves an altered balance of policy issues to other rules' regulation. The rule-based conception of law leads attorneys to ignore the opposing interests and think about their cases in ways that promote overstatement. If cases were won simply by bringing facts under the accepted rules, then if you were right, you'd be clearly right, as attorneys so often declare, because once the facts are characterized ordinary logic dictates whether they satisfy the rules.

In a to-be-published essay (download) Judicial Declaration of Public Policy, Journal of Appellate Practice & Process, Vol. 10 (forthcoming, Spring 2010) Ruggero J. Aldisert, Senior Judge, Third Circuit Court of Appeals, opines that the majority of federal-court appellate briefs are made useless by their failure to help the court resolve the issues. (Hat tip to Prof. Lawrence B. Solum, Legal Theory Blog.)

Too often, briefs simply recite the various leading cases and attempt to bring the particular dispute within the boundaries of the decisions thought to be controlling. They address too briefly, if at all, the interests implicated in the decision. Such briefs are of little aid to the court. (Aldisert, supra, at p. 16.)

Many cases—particularly in torts, tax law, family law, and constitutional law—aren't resolved by rules alone but require inferences from the relationship between rules and the vying interests viewed through a public-policy lens. Most appellate cases feature conflicting interests, and a brief can persuade only if it discusses them. All relevant "private, social, public, and governmental interests" must be "not only evaluated, but compared, accepted, rejected, tailored, adjusted and, if necessary, subjected to judicial compromise." (Id., at p. 13.) To persuade the court with a comprehensive analysis, the writer must "know not only those facts which bear on direct controversy, but know all the facts and laws that surround." (Justice Brandeis, quoted id., at p. 16.) Broadly understanding the issues' periphery also discourages overstatement and other oversimplification.

My blog Juridical Coherence has started a series on statutory interpretation, including public policy's role. (http://tinyurl.com/d8pos9)

Revising Orwell: Initial Conjunctions as Light Adverbs

Using the adverbial connective however (see "Banish Stock Transitional Expressions") is not an outright stylistic weakness but a device useful, even necessary, in speech, hence in fiction, a device, though often excessive, that persists because of over close identification of competent speech and writing. Characteristics of speech demanding artificial connectors are its short sentences and explicit signposts, so nonfiction writing calling for short sentences and signposts can warrant using adverbial connectives. Writing requires short sentences and signposts when it demands hyperclarity, as for legal briefs in our overcrowded courts.

Some statistics help in grasping the size of sentence-length differences. Many essayists write sentences averaging 22 to 28 words. Bryan Garner recommends sentences in legal briefs average 20 words. Plain-language advocates typically call for sentences averaging 15 to 20 words. Many excellent fiction writers seem to average around 18 words per sentence. (Hat tip to StevenBerlinJohnson.com, where you can find some surprising statistics and observations on writers' sentence lengths.)

If clarity demands only moderately shorter sentences, as in brief writing, occasionally starting a sentence with a coordinating conjunction, such as and or but, is a less distorting method of artificial connection than adverbial connectives, such as however, moreover, nevertheless, and in addition, terms depicting relations between referring clauses, not referenced objects. To appreciate why initial conjunctions are less distorting than adverbial connectives, it helps to understand the connective paradox: when they begin sentences, these so-called conjunctions function as adverbial connectives. A coordinating conjunction at the beginning of a sentence doesn't tie the two sentences together, sometimes advertised: it doesn't function like a semicolon to establish a relationship stronger than separate sentences but weaker than conjoined coordinate clauses. The reader, having read the sentence complete, can't undo the perception, so but no longer functions conjunctively. But takes the meaning of however and comes to exemplify the same lexical category. But always has an adverbial component; otherwise, it couldn't assert contrariety. Dropping the conjunctive component by using but at a sentence's beginning leaves only a light adverb remainder.

When exceptional circumstances don't limit sentence length, the writer can be more precise by striking the initial conjunction, combining the sentences to turn the initial conjunction into an ordinary conjunction, or rewriting. George Orwell disagreed. Here's an example including an initial conjunction, but, and an adverbial connective (or stock transitional phrase), on the other hand, from George Orwell's essay "Politics and the English Language":

A newly invented metaphor assists thought by evoking a visual image, while on the other hand a metaphor which is technically 'dead' (e. g. iron resolution) has in effect reverted to being an ordinary word and can generally be used without loss of vividness. But in between these two classes there is a huge dump of worn-out metaphors which have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves.

I would rewrite the passage by eliminating the transitional phrase, using but to connect clauses within one sentence, and replacing the compound predicate reverted... and ... used with a simple predicate and adjective phrase, thus:

A newly invented metaphor assists thought by evoking a visual image, while a metaphor which is technically 'dead' (e. g. iron resolution) has in effect reverted to being an ordinary word, generally usable without loss of vividness, but in between these two classes there is a huge dump of worn-out metaphors which have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves.

The transitional phrase on the other hand helped convey that Orwell mentioned the newly invented and the dead as opposite statuses for metaphors. Joining the clause about the worn-out metaphors with the previous sentence, containing the contrast, allows making the same point about opposite statuses without using the transitional phrase on the other hand. The clause about the worn-out metaphors introduces the opposites by locating worn-out metaphors between them. The sentence is longer than any of Orwell's, but the passage gains precision using fewer words.

Banish Stock Transitional Expressions

Writers are advised to avoid stock phrases. Writers are also advised to favor transitional expressions. Because a transitional expression is a kind of stock phrase, the advice favoring transitional expressions is misguided.

Here's a sentence without transitional expressions, taken from the previous Disputed Issues entry:

Plain-writing advocates commonly recommend short paragraphs. Very short paragraphs provide a false sense of Concision, actually compromised by forced redundancy.

The second sentence states a proposition opposed to the first. Inserting the stock transition however explicitly expresses the tension between successive clauses:

Very short paragraphs, however, provide a false sense of Concision...

However is so good a minimalist example of a transitional expression that, unless you consult definitions, it may not seem an expression. An expression's defining property is diminished semantic content borne of a stale combination of terms. Although however is a single word, it is composed of how and ever and gets its meaning from them figuratively. However vaguely expresses contrariety to the preceding clause.

Connection between sentences is more Concisely carried by sentence structure than expressions. Structural methods call attention to the clauses' relationship without vaguely stating it, as in the example where re-introducing the phrase short paragraphs from the first sentence's predicate in the second sentence's subject relates the sentences. Worse than the prolixity of unneeded expressions or the cacophony of their repetition, transitional expressions impair Clarity through vagueness, as using any stock expression substitutes reflex for thought. George Orwell describes the malady in "Politics and the English Language" (1946):

If you use ready-made phrases, you not only don't have to hunt about for the words; you also don't have to bother with the rhythms of your sentences since these phrases are generally so arranged as to be more or less euphonious. When you are composing in a hurry, when you are dictating to a stenographer, for instance, or making a public speech—it is natural to fall into a pretentious, Latinized style. Tags like "a consideration which we should do well to bear in mind" or "a conclusion to which all of us would readily assent" will save many a sentence from coming down with a bump. By using stale metaphors, similes, and idioms, you save much mental effort, at the cost of leaving your meaning vague, not only for your reader but for yourself.

To express precise thoughts with fresh combinations of words, writers should avoid stock phrases. The same admonition applies to the subcategory transitional expressions. Other stock expressions imprecisely describe or denote the external world; transitional expressions imprecisely refer to the relations between clauses.

(See also "Revising Orwell: Initial Conjunctions as Light Adverbs.")

Shortened Paragraphs: Undaunting but Confusing

Plain-writing advocates commonly recommend short paragraphs. Very short paragraphs provide a false sense of Concision, actually compromised by forced redundancy. Short paragraphs also invite ending a paragraph with the following paragraph's topic sentence, a practice inimical to Clarity. Some short paragraphs written by an authoritative plain-language advocate, who practices what he preaches, show how short paragraphs make writing verbose, even as it appears spare. (Examples are from Schiess, What Plain English Really Is (2009) Scribes Journal of Legal Writing, Vol. 9, p. 43, which you can download free from the link.) Wayne writes at page 46:

Professor Crump is right that lawyers must use forms. Lawyers must take advantage of the experience embodied in forms because, as David Mellinkoff puts it, "No one who makes frequent use of the law will ever live long enough to live without forms."

What's the distinction between lawyers' "using forms" and lawyers' "taking advantage of the experience embodied in forms"? These expressions are no less redundant than legalese's dreaded doublets ("true and correct") and triplets ("rest, residue, and remainder"); redundancy in successive sentences, rather than words, is redundancy no less. Wayne could have written "Professor Crump is right that lawyers must take advantage...," but doctrinal preference for short paragraphs necessitates redundancy to get two sentences for the first paragraph: redundancy inspired by author's realization that, even if paragraphs should be short, numerous single-sentence paragraphs reduce the guideline to the absurd.

Under the heading "The suggestion to create a separate document that explains the legal terms in plain English," Wayne writes at page 45:

Though this idea is not Professor Crump's and he does credit it to someone else, it's excellent. Plain-English advocates have already implemented it.

In her book, Plain Language for Lawyers, Michele Asprey reports that in Australia, the Corporations law Simplification Task Force created a Separate "Small Business Guide" within the Australian Corporations Law. The Guide, produced in 1995, is a plain-English version of the official law and has been well received by nonlawyers: "Small business people have told the Taskforce that reading the Guide has been the first time they have understood their obligations."

Short paragraphs damage the logic of these sentences by separating the real paragraph's topic sentence—second sentence of Wayne's first paragraph—from the supporting sentences in Wayne's second paragraph. As the paragraphs stand, the first contains two unconnected ideas and the second misdirects readers' attention from promulgating the plain-English version of law to a book reporting on it.

Avoiding elegant variation

Here's an example of confusing elegant variation:

Born in Woodmere, Long Island , on May 22, 1930, Milk was the younger of two boys in a family descended from Lithuanian Jews on both sides. (Their last name was originally Milch.) Milk's paternal grandfather maintained strong ties to the synagogue he helped build in his grandson's hometown.

(Als, Revolutionary Road (March 12, 2009) The New York Review of Books at p. 8.)

Take a few seconds correcting the final sentence to eliminate elegant variation.

If you assume avoiding elegant variation means repeating proximate words, you substituted "Milk's" for "his grandson's." The cure, here, is worse than the disease: surfeit of Milk gags the reader. The writer gains Concision and avoids both elegant variation and cacophony by substituting "Woodmere" for "his grandson's hometown."

May even contracts be euphonious

Fowler (http://tinyurl.com/alv6bd) complained elegant variation — replacing nearby repeated words with synonyms — was the unfortunate offspring of popular rules against word repetition, but, today, the rule against elegant variation begets excessive tolerance of expressive monotony, with elegant variation blamed for effects of other writing vices. Consider this example, from Wayne Schiess:

The U.N has been working in the region for more than three years and says it has been making progress in resolving conflicts among factions. Local officials, however, are not as enthusiastic about the work done by the world union.

(http://tinyurl.com/db6hpk)

Wayne thinks the elegantly varied "U.N." momentarily confused him, but "enthusiastic" — ambiguous on whether comparing local leaders' enthusiasm to the U.N.'s work or its self-praise — is the main problem. The reader must look to the succeeding phrases to disambiguate enthusiasm's object and, misleadingly, first encounters "work," not speech. "World union" wouldn't confuse except for the ambiguity of "enthusiasm" and the subsequent misdirection. Changing "enthusiastic" to "favorable" clarifies the sentence, even retaining the elegant variation; deleting the final phrases ("about the work done by the world union"), without substitution, entirely avoids the forced choice between Euphony and Clarity.

High tolerance of repeated proximate words is more justified in transactional law than in brief writing. From overemphasis in its transactional stronghold, this tolerance generalized to all legal writing. But Euphony, although subordinate to Clarity, remains relevant in drafting. I disagree with Greg Kochansky when he writes, "A contract is like a computer program. It's meant to be dry, boring and supremely consistent." (http://tinyurl.com/c4n8pk) Consistent, yes, but, if Clarity doesn't conflict, a contract drafter — seeking to persuade a party to sign, and, sometimes, a court to enforce — should strive for Euphony.

Proofreading & Credibility

Every authority preaches typographical errors kill courtroom credibility, although typos don't refute arguments. Credibility in a legal brief takes two forms. A brief gains intellectual credibility by demonstrating legal mastery, moral credibility by creating a fair-minded impression. These two forms of credibility arise from different sources. Since intellectual credibility comes from demonstrated competence, writing authorities connect the curse of typos with intellectual credibility's loss, but proofreading skill doesn't measure high intellect. Writing teachers may confess they proofread poorly, and some intellectually competitive environments are indifferent to typos. (See, e.g., http://tinyurl.com/cprlsr [writing teacher].)

Typos are "immoral" in a social context of superior/inferior stratified relations; competitive environments indifferent to typos are egalitarian. Proofreading is part "formality," socially mandatory courtesy in upward communication. The judge, courtroom social superior, doesn't deprecate incompetence at proofreading but stinginess with editorial resources, the moral offense of presumption. Dishonoring formalities brings threat, not disdain, explaining proofreading's importance when it meagerly enhances Clarity and Attractiveness.

Formula and formality

The "plain-language" movement responded to the incomprehensible business letter after correspondence became a fundamental business tool, but the cultural changes of the 1960s also propelled business and legal writing in a new direction. Plain writing is a movement for Concision and Clarity and, equally, informality. Writing advice often confuses the two plain-language agendas: communicative efficiency and social-power-distance reduction. Espousal of both purposes by one writing school helps explain their confusion, as does their relation to different senses of "formality." One sense is "strict adherence to established rules and procedures; rigidity"; another is "observance of form or ceremony.” (http://dictionary.reference.com/browse/formality) Formalities in the sense of ceremony impose rule-based rigidities, but not all rule-based rigidities come from formalities; much rigidity arises from wrong ideas about effective writing. The difference is important because practices based on bad writing advice call for a radical eliminative remedy, practices based on formality, moderation. Formalities also raise special problems of consistency, so getting the formality level consistently wrong can be better than occasional tonal inappropriateness.

Degrees of formality in writing express near-universal differences in personal address and related language use depending on conversers' social proximity and status. Friends may use forms of speech different from strangers, subordinates to social superiors different still. Where relationships with strangers and social unequals are fraught with hostility, forms serve to contain emotion by sacrificing communicative liberty. Modulating social distance through formality rigidifies language, but not all formulaic writing is rooted in formality. Native speakers grasp the distinction between social formality and pragmatic usage rule because a sense of social misstep or shame accompanies a true formality violation. To observers, our violation of the social formalities creates a perception of social impropriety, not merely communicative ineptitude. The first test is the introspection test. Do you say, "the court should order" or "plaintiff requests that the court order." Usually the first is better, but the second may be justifiable because its level of formality is higher. You can feel how the first nakedly asserts what in a less direct era requires a more indirect approach. You should adjust level of formality according to local custom; breaching the expected level of formality expresses egalitarianism, unwise courtroom politics more than inferior writing.

Since formalities are rules of respect, they apply to any medium, writing and speaking. The second test to distinguish formalities from errors, the speech test, is whether on formal occasions you speak as written. One doesn't avoid contractions when speaking to strangers or superiors. The speech test shows contraction avoidance is not an aspect of formality, contrary to a popular view. You should emphasize the test with the clearest results, and for contractions the speech test clarifies how much contraction avoidance rests on bad advice about effective practices rather than on formality, whether excessive or appropriate. Negative modal verbs — such as "can't," "don't," "won't" — are contracted freely in speaking regardless of conversers' comparative social status. The introspection test confirms the speech test. No sense of offense to the conversational partner accompanies using these contractions. Contractions of participles fare differently. We don't use the contraction "would've" on formal occasions. We pronounce this contraction like "would of," and its enunciation involves a relaxed, slurring of consonants, showing minimal respect for status. Such manner of speaking is subtly insulting to those styled social superiors, even if their superiority is only procedural. Even more casual is the negative of the past participle — for example, "wouldn't've." In legal writing, use the first class of contractions but not the formality-breaking second and third.

Excessive Stage Setting: Boilerplate and Storytelling

One little-remarked practice that sharply divides appellate lawyers is incorporating extensive stage setting in briefs, including boilerplate procedural law and storylike facts. Excessive stage setting is a problem in all the professions. The right amount of background material depends on the reader's knowledge, the optimal background varying with professional development. This moving target may be one cause of excess: the concision expected of a professional differs from the volume rewarded by teachers. The work product practiced when learning is much different from that demanded as professionalism matures.

Briefs filed in both appellate and trial courts usually include excessive stage setting. For a motion for summary judgment, the judge does not ordinarily want an exegesis of the summary judgment statute. The judge knows the procedural law of summary judgments better than you or your ghostwriter, and to presume to educate the judge on routine procedure is either arrogant or pedantic. Yet, many lawyers habitually include a boilerplate summary of summary judgment procedural law. Similarly, in briefing an appeal of a malicious prosecution case, the Court of Appeal will be uninterested in extensive discussion of those facts in the underlying case unnecessary to resolve either of the cases below.

If excessive stage setting distracts and dilutes, why do so many attorneys do it? The dialectic between training and expected performance partly explains it. Another cause, clients' demands and expectations. The attorney's only drive may be winning the case, but his client has collateral motives. What convinces the judge doesn't necessarily please the client, who often doesn't understand the difference between pursuing victory and expressing indignation. The client's interests are rationally opposed to effective writing insofar as he distrusts the attorney, tempting the client to use personal metrics to weigh the brief's effectiveness and the price's justification, and the client's default measure of the attorney's labor is often length. Some clients urge their entire story's telling, thinking their cases deeply sympathetic, capable of moving judges to assist. The client presses against writing a brief likely to win, and attorneys can find that if they tell the client's story, present numerous arguments, and quote an abundance of law, the client will be gratified, even if the case loses. The motives of litigants are often removed from what law contemplates.

An unusually persuasive brief can overcome a client's objections. Sometimes only with the best can you obtain your client's permission to brief effectively.

Effective Writing: The Big Picture

Click on image to enlarge

One way to assess writing is to break down the general idea of good writing into facets, the writing Virtues, and to analyze the Virtues into their subordinate Facets. I have invoked the writing Virtues repeatedly, and they deserve systematic delineation by facet analysis. (See Hjørland, Facet, Facet Analysis, and Facet-Analytic Paradigm (2008).) Two Virtues apply to the message's meaningful content: the document's words and sentences; two apply to the medium: the sights ink and paper present and the inner speech they represent.

The message-related Virtues are Clarity vs. confusion and Concision vs. prolixity. Clarity's Facets are Precision vs. inexactitude, Thoroughness vs. omission, and Integration vs. pointlessness; Concision's Facets are Succinctness vs. looseness, Organization vs. repetitiveness, and Relevance vs. digressiveness. Attend to their Facets to understand the Virtues. "Clarity" usually denotes Precision, and "Thoroughness" initially seems far removed. Clarity, here, refers to a dimension expressing the amount of contained information, the Precision Facet denoting the fineness of informational grain; Thoroughness, the extent of its sweep; and Integration, the richness of interconnection. Clarity refers to a dimension of the writing’s power, analogous in sense to the physicist's concept: work done per unit of time. Concision, a dimension reflecting the writing's informational efficiency — how much information is conveyed per linguistic sign — is analogous to the physical concept of efficiency, the ratio of the work done to the energy supplied. The Succinctness Facet is the small-scale elimination of verbiage, such as redundancy creates; Organization is avoiding inefficiency due to repetition; Relevance is avoiding overinclusiveness.

Clarity and Concision function in both complementary and conflicting ways. Many writing improvements favorably affect both Clarity and Concision because eliminating verbiage avoids distraction and miscue, improving Clarity mainly by enhancing the Precision Facet. But some features of writing improve one at the expense of the other, creating tradeoffs sometimes easily accepted or rejected, other times presenting purpose-related choices. Extensive background facts improve a brief's Clarity via Thoroughness, but the author digresses at the expense of Concision via Relevance. The best legal-writing resolution of this tradeoff approaches strict Relevance, but other writing, say, a New Yorker essay, benefits from the greater Thoroughness that weakening the Relevance criterion allows. Thus, different writing tasks benefit from modification of style, one with greater weight on Clarity and less on Concision, each subordinate Facet, however, not equally affected. Besides yielding a checklist for evaluating writing, the model also affords a unified vocabulary for describing important differences in writing style, based on the weight applied to the Virtues and their Facets. It even gives the writer a device for modifying style systematically.

Compared to the message-based Virtues, the medium-based Virtues operate more independently, yet still participate in complementary and conflicting relations. Euphony vs. cacophony divides into the Facets Novelty vs. monotony, Rhythm vs. clumsiness, and Smoothness vs. choppiness. Novelty is expressed in stylistic variety, such as the using sentences structured variously. Rhythm includes idiomatic propriety and some devices, such as parallel construction, and Smoothness describes the sense of flow. Euphony concerns how the writing sounds, even if never to be read aloud, since unspoken language's sound still similarly affects us. With the advent of computer-document formatting, the writing's naked look has become significant, elevating the fourth writing Facet to the Virtue Attractiveness vs. ugliness. Novelty vs. monotony appears beneath, its being a general principle of attention allocation, but its opposite, Expectability vs. unnervingness, also appears. The two dimensions of Attractiveness accommodate our taste for moderate novelty and our aversion to both the monotonous and the bizarre, whereas Euphony lacks a similar conflict about degree of novelty because any language's aural limits don't admit novelty's excess. Finally for the Facets of Attractiveness, Neat versus sloppy includes, at the sloppy pole, interlineations and typographical errors.

Euphony, by complementary effect, ordinarily subtly enhances Clarity, but some Euphonious improvements will diminish Clarity, for example, choosing words that sound best despite their vagueness. Attractiveness is the Virtue most causally isolated from the others. It obviously has some affect on a document's reception; we don't know how big. We might hope the effect small just because of its independence from message-based Virtues, but first impressions are more influential than anyone suspected. (See Gladwell, What Is "Blink" about? (2005).) The pleasantness of fonts — distinct from their legibility, which instead improves clarity — is an example of a variable enhancing Attractiveness. Having explored the Clarity of fonts, in the future, I'll consider their Attractiveness.

When To Dash

Dash usage is even more subjective than comma usage. Authorities agree that commas, dashes, and parentheses are alternative punctuation devices for setting off mildly divorced expressions. Why one might sometimes want to set off an expression with dashes instead of commas receives opposite answers. Most often commas and dashes are said to differ in the stress they place on parenthetical matter. Material set off by dashes receives added emphasis compared to commas; or gets less, according to other authorities. The dash apparently isn't important enough for anyone to figure out.

The pair of dashes make the text they enclose parenthetical in a slightly different sense than the comma, by creating tangentiality instead of subordination. Commas set off matter that is parenthetical in the sense of being non-restrictively subordinate. A non-restrictive phrase or clause helps the reader understand the matter to which it is subordinated. While not changing the meaning of what it modifies, it adds nuance. Non-restrictive modifiers are meant to be held in the back of the mind to get a more exact understanding of the sentence's idea; expressions set off by dashes are to be noticed, filed away, and ignored. Although expressions surrounded by dashes contain matter related to the sentence, the matter doesn't refine the sentence's meaning. Dashes are interposed because the material they surround benefits by being introduced in the vicinity of the sentence's related material. Dash-surrounded matter is more parenthetical than material set off by commas but it is at the same time more central, as the sentence contains it for the tangential matter's advantage, not the sentence's. Hence the conflicted impressions that dashes give more or less emphasis than commas.

Use of parenthetical comma versus dash matter in my recent Installment in another blog illustrates the difference.

The dash: "Unlike bans on obscenity — but like bans on speech presenting a clear and present danger of violence (Schenck v. United States (1919) 249 U.S. 47 [affirming criminal penalties for wartime military-draft-repeal agitation intended to encourage obstruction]) — bans on frivolous filings are inherently viewpoint discriminatory."

The comma: "What remains illegal under the R.A.V. standard, despite the unprotected status of frivolous filings, is apportioning the privilege of filing frivolously."

The dashes are suited to set off material so the reader can return to the main line of thought. The parenthetical material helps understand the sentence little, placement justified paragraphs ahead, where the tangentially mentioned similarity to certain speech bans is put to use.

A striking observation, apparently novel, is that dashes can always replace parenthetical commas without structural error, but commas could not properly replace the dashes in the first example. The expression set off is neither nonrestrictive clause nor nonrestrictive phrase because, not corresponding to any structural unit, it is neither clause nor phrase. An "expression," it is constituted by semantics instead of sentence structure. Many an unnecessary comma comes from an impossible wish to insert a small dash.

Writing versus Speech — Why Lawyers Write Badly

Authorities agree most lawyers write badly. Understanding the causes often helps correct problems; proposed explanations include lawyers' bad reading habits and law schools' bad pedagogy. But the writing teachers now approach consensus: lawyers are just too busy. (See, for example, http://tinyurl.com/6occl4.)

Polishing a brief, however, is not one of the more time-consuming tasks for an experienced writer, since practice brings faster and less extensive revisions. The benefit experience confers in more polished first drafts is easy to overlook, as I did when I didn't account for it in the Disputed Issues entry "Hours." You don't get this benefit by practicing bad writing habits, as advice to forgo style in the first draft prescribes. Best practice is writing the first draft as stylish and grammatical as you can manage while composing at top speed. Rapid composition helps with flow and continuity, while you practice compositional skill.

The writing teachers who make the harried-attorney diagnosis are practical people, but practical aspirations are at odds with their explanation, which doesn't admit improving the profession's written performance. The diagnosis avoids the biggest enigma of lawyerly writing: why doesn't the job market for lawyers force improvement? The weak market pressure for better writing reinforces attorneys' reasoning that their writing must be good enough because it doesn't impede sales.

The best clue about the cause of bad writing across the profession is the lack of criticism lawyers receive for their speaking performances. Trial lawyers whose writings are barely intelligible usually speak persuasively. Lawyers conclude speaking is more important than writing, a conclusion the lawyer's distribution of time confirms. Lawyers usually spend more time speaking and listening than writing and reading, and aspirants consider law a speaking profession.

Writers' and speakers' talents overlap, but interests and inclinations that favor each differ; for one thing, writing is solitary, speaking, social. Lawyers are mostly oral beings. I prefer e-mail, but I make a phone number available for lawyers, whose comfort with telephony attaches distrust to outcomes otherwise arising. The conflicting imperatives for speakers compared with writers and the attractiveness of law practice to the speech-oriented best explain why lawyers often write badly.

Good rule, bad rule

Some commonly accepted style rules are simply wrong, such as the high-school-English rules against initial conjunctions and terminal prepositions. The plain-language school denies it, yet the forgoing rules aren’t entirely bad: their use must be limited to creating rebuttable usage presumptions. As absolute rules, they have been discredited in popular culture, discredited excessively, even the presumption in the rules’ penumbra silenced.

New misguided rules waited in the wings. Today, authorities advance a rule as unfounded as the above positional prerogatives. The vogue rule assigns unalterable sentential roles to “that” and “which.” Recognized writers don’t follow this rule, and, even as policy recommendation, it offends Clarity. The putative rule assigns “that” to restrictive clauses and “which” to nonrestrictive, redundant to comma usage. Redundancy should be avoided: A single distinguishing cue for each distinct response is best for overlearned performances, such as comma recognition.

Don't conclude seemingly arbitrary, picayune rules — even those lacking expert endorsement, like the “and, but” rule and the “to, for” rules, above — are always invalid. At least one rule deserving wide recognition gets scant respect, in obscure but esteemed sources, listing too many comma uses to learn. According to this obscure rule, a causal adverbial clause beginning with “because” is always restrictive and, “since,” nonrestrictive. In its temporal sense, however, “since” always introduces a nonrestrictive clause, the rule's main payoff. These examples of restrictive and nonrestrictive causal adverbial clauses come from another of my blogs:

Canatella 1 found that the Younger abstention doctrine, which protects ongoing state proceedings from federal court interference, did not compel case dismissal, since Canatella filed before the State Bar served him a case-initiating Notice of Disciplinary Charges.

Gentile's practical import is that in 1991 it had already foreclosed opposing disbarment for frivolous filings because they are believed expressive.

Evaluating ghostwriters, you shouldn’t assume breaking a rule resting only on traditional acknowledgement is error. Clarity trumps pedantry.

Overcompensation for Persuasion

Has anyone else wondered why purveyors of advice, such as this writer, foster overconcern with behavioral trivia that alienate judges? Consider the idea that briefs should be carefully edited to avoid typographical errors, which make a bad impression on judges surely disproportionate to their communicative significance. Doesn't spending hours to find a handful of typographical errors in a long brief waste resources, whether the time is your own, or your ghostwriter's time is your money? How can Justice Scalia calmly advise attorneys to laugh at all of a judge's jokes, instead of demanding that judges stop harboring these self-aggrandizing expectations? What becomes of the judge's duty to avoid biased adjudication? That the judge should proactively counteract the biasing effects might seem completely reasonable, and judges do insufficiently try to understand their biases and eliminate them to the extent possible. Even more, attorneys often go too far in efforts to gain a judge's good will, as by needlessly conceding points in oral argument to appear cooperative. But even the most just of justices cannot eliminate their automatic extralegal reactions.

The popularization of persuasion research confuses practitioners. A classic in the social-psychological literature of persuasion is Robert B. Cialdini's book Influence: A New Psychology of Modern Persuasion, in which the relevant research described, followed by the author's common-sense suggestions on countering exploitive techniques, as though insight into the persuasive mechanism provides a direct route to avoiding all irrational persuasion. Only recent research delivered the most important fact for judges about persuasion and its resistance — deliberately compensating for unconscious bias overshoots its mark. To fear arguing your position forcefully is usually misplaced because irrational anger, sustained by a conscious stream of thought, is a force attorneys rightfully and realistically expect a judge to tame. Inferior in importance only to honesty and civic courage, temper control is one of the cardinal virtues of the good judge. (See Solum, Virtue Jurisprudence: A Virtue-Centered Theory of Judging (2003) 34 Metaphilosophy 178, 187.) But the judge can counteract subtle unconscious reactions only by bending conception against perception. But volitional efforts overcompensate in greater, opposite bias.

Perhaps most decisionmakers, including judges, know this result intuitively, since overcompensation for bias isn't the usual response to persuasive communication. You occasionally can observe overcompensation in naive judges when an attorney's courtroom performance is egregiously incompetent. The conclusion isn't one I prefer, but candor requires it: when you have a case that borders on the frivolous, you may do best hoping for overcompensation and choosing an incompetent ghostwriter.

Visit my new blog, Juridical Coherence: Legal Theory on Framework Issues.

The underestimated comma

Proper comma use is the most underestimated way to clearer writing. While the effects are subtle, they are also cumulative, so most readers will be unaware of the reason the well-punctuated document is clearer. They probably also lack a model against which to compare, as optimally punctuated reading matter is rare.

One reason the comma is unappreciated is that many educated persons see grammar and punctuation as a matter of learning mindless rules. Schoolchildren are usually told to use correct grammar to avoid appearing uneducated. But rules of punctuation are well tailored to carve sentences into units useful to their comprehension.

Another reason the comma is unappreciated comes from the inconclusive notion that commas represent pauses when text is spoken. Readers and writers often decide comma use is either easy or subjective. Although commas only occur where a speaker pauses, not every pause should receive a comma. Pauses are so varied in form and use in speech that you sometimes won't hear commas unless you know what to listen for.

A third reason for underestimating the comma is that everyone knows how to use the comma passably, although few use it well. An activity anyone can accomplish is a good recipe for the under-appreciation of any skill. Lawyers, for example, are under-appreciated because, as self-representation demonstrates, most educated persons can do the work of lawyers well enough even to stand a chance of prevailing.

A fourth reason that commas are unappreciated is the vague popular idea that good writing is conversational. Some qualities of conversational speech make for readable writing, but limiting what a writer can accomplish to what sounds good when spoken doesn't exploit the advantages of written communication, which, aided by punctuation, can express sentences of greater complexity than can bear overt speech.

Few lawyers want to spend time refining their understanding of the comma, but a professional ghostwriter should. You may doubt the practical significance of placing commas in the right places and only there. Some will think the task easy; others, inconsequential. But even the best legal writers suffer from comma errors, whose avoidance would improve clarity. One of the greatest legal writers was Oliver Wendell Holmes, Jr. Consider this subtle comma error, of a kind occurring often in his work. In The Common Law (1881), p. 164, Justice Holmes writes this superficially unobjectionable sentence:

It is neither a harm nor a wrong to abstain from delivering a bale of wool at a certain time and place, unless a binding promise has been made so to deliver it, and then it is a wrong only to the promisee.

The comma before "unless" is incorrect because the clause "unless a binding promise has been made so to deliver it" is restrictive. Holmes's comma placement conveys that abstaining from the delivery is never a harm and thus prepares the reader to understand the following clause to tell why, when the clause states the conditions under which the abstention is injurious. These subliminally perceived contradictions distract and confuse the reader.

The error of Justice Holmes was an error of overpunctuation. The superiority of heavy punctuation in legal writing doesn't mean errors of overpunctuation aren't common; they are much more common than the reverse, since the defect of underpunctuation often falls short of error. If Justice Holmes could err, perhaps I can overcome embarrassment to reveal an error of mine, appearing in my other blog. You judge whether it's more egregious than Justice Holmes's.

The court should not allow the State Bar to exploit its manipulative discussions with the Supreme Court Clerk's Office, or its special relationship with the Supreme Court itself, to gain an unfair advantage.

The comma preceding "or" mistakenly treats "or its special relationship with the Supreme Court itself" as parenthetical.
[See also, "Mysteries of the Comma."]

Adverse Information

An opening brief should deal forthrightly and thoroughly with obvious objections. The court will think about undispelled objections instead of thinking about your arguments. Refuting opposing arguments early also improves an advocate’s credibility. Judges commonly complain that briefs fail to deal adequately with objections and other adverse material even after presentation by the other side. One reason is that a widely accepted perspective sometimes called the sponsorship theory holds that preempting an opponent by raising potential objections weakens persuasion. Sponsorship theory flourishes among trial attorneys, who apply it to juries rather than judges, to maintain that the fact finder will magnify any concessions based on their source.

Psychological theories can justify both sponsorship theory and its denial, sometimes called the scholarly approach, when applied to brief writing. Sponsorship theory invokes the recipient’s expectation that the advocate will present client-favorable arguments. Heightened expectations, a comparison-level concept — familiar to all who have suffered through Presidential-campaign coverage — cause adverse information to register as more adverse than when opposing counsel presents the same information. The prediction favoring preemptive presentation of adverse material comes from the theory of cognitive dissonance, which describes listeners as changing their beliefs and perceptions toward pragmatic consistency. Cognitive dissonance theory predicts judge or jury will understand adverse information the advocate supplies as less adverse because an advocate’s presentation of adverse information is inconsistent with recipient expectations. Comparison level theory and cognitive dissonance theory predict opposite effects, both based on inconsistency between source and message. Which is stronger of these tendencies, triggered in recipients when an advocate offers adverse information preemptively?, If the advocate is sufficiently skilled, preemption wins because the advocate can exploit cognitive dissonance but can only resist a disadvantageous comparison level.

Antipreemptivists sometimes clothe their view in the ethical cannon of zealous advocacy, but antipreemptivist motivation often comes from some advocates’ finding no merit in positions they oppose. Sometimes immersion in a case makes a client’s contentions appear self-evident, but trial attorneys also cultivate their absolute conviction favoring their client, because their self-certainty helps convey their conviction to naïve juries. Persuasive discourse benefits from different attitudes, depending on whether the recipient is judge or jury and whether the medium is speech or writing. Attorneys adapted to persuade juries do particularly well filing ghostwritten briefs when they communicate with judges in writing.

Fonts Aren't Frivolous

While most lawyers don’t grasp Concision’s importance, all understand Clarity’s, but not factors subtly enhancing Clarity. Font selection is one of the most subtle factors that affect Clarity, yet Clarity should dictate font selection, whose first rule is use the most legible font; but many fonts are designed for legibility, without reliably detectable legibility differences among them. Font selection’s second rule, which also serves Clarity, discriminates between equally legible fonts by their degree of novelty: use a font different from the jurisdiction’s default but similar to it.

Long briefs demand legible fonts, but legibility remains important regardless of who inflicted the judge’s eyestrain. Most of the commonly used briefing fonts are not among the most legible. The once-dominant Courier New mimics a typewriter rather than achieving the legibility possible with modern technology, and a space-saving design compromises Times New Roman. Of three commonly used legal fonts, New Century Schoolbook, the U.S. Supreme Court’s choice, alone performs among the most legible long-document fonts.

As the Seventh Circuit Court of Appeals points out in its web site, the best font is one designed for book reading. (See "Requirements and Suggestions for Typography in Briefs and Other Papers.") At places, the Seventh Circuit’s rules are dated, as in the prohibition on sans-serif fonts, more modern-looking typography lacking fancy stroke endings. Although books aren’t yet printed in sans-serif fonts, research shows them equally legible.

You don’t know the judge’s font preferences, but you can rely on the principle moderate novelty attracts greatest interest. A markedly different font distracts, while one identical to the norm doesn’t help keeping the judge’s attention. New Century Schoolbook, for example, is close enough to Times New Roman, but Avant-garde isn’t.

Contractions

Two well-supported conclusions argue for using judiciously chosen contractions in legal briefs:

1. Avoiding all contractions sounds stilted, and

2. Using contractions increases readability.

Contractions enhance Euphony, by eliminating a source of stilted writing. Readability studies favor contractions, the studies, also, showing that greater readability implies greater Clarity, as when the reader's neglect of the auxiliary reverses the uncontracted phrase's meaning. So, scientific evidence favors contractions for Euphony and Clarity, and contractions directly improve Concision.

But most legal briefs don't contain contractions, and a recent online poll of a few thousand, supported by hundreds of comments, reported that 85% of attorneys avoid contractions. What's the problem with contractions? Opponents usually decry their tone. The opponents divide over whether attorneys should avoid contractions because they impose unnecessary risk on their clients, by creating a judicially offensive informality, or because contractions independently set the wrong tone. Justice Scalia makes both arguments in Scalia and Garner's Making Your Case: The Art of Persuading Judges (2008).

Use of contractions revisits a broader legal-writing issue. Many attorneys reject traditional tone-setting writing practices, such as the prefatory "Comes now.” Clarity is so important that the attorney proves to do best by not clouding his writing, despite contrary inducements. Garner provides one explanation for attorneys' misplaced concern that better writing offends some judges: unnatural uncontracted forms distract subliminally. (Scalia & Garner, supra.) The explanation is consistent with Wayne Schiess's observing that an associate should worry about the partners' anticontraction opinions, not the judges.’ (See Comments, here.) Partners, but not judges, may disregard the brief’s persuasiveness.

Scalia and Garner (p. 107) write that clarity trumps all other stylistic considerations. Justice Scalia resists applying this maxim to the contractions controversy.

See also "Formula and Formality."

Writing Styles

Once, two professional writing styles, the Attic and the Asiatic, vied for dominance.

"From classical Greek and Roman times, two literary traditions have grown alongside each other. One, a florid oratorical style called Asiatic prose, sported elaborate antitheses, complicated syntax, and correspondences in sense and sound. The other, Attic prose, was refined conversation: concise, restrained, shorn of intricacy." (Garner, The Elements of Legal Style (1991) p. 7.)

Today, it is said, only the Attic remains standing, but Attic and Asiatic are really but points on a continuum; while the Asiatic extreme has died, and the Attic survives in the "plain English" school, all that is not Attic is not Asiatic, and your ghostwriter should be fluent in a spectrum of styles. Different weights on the writing virtues, Concision, Clarity, and Euphony, define the Attic and Asiatic styles, although both styles work within the constraint that Concision is the pre-eminent writing virtue. Within that constraint, the Asiatic gives still greater weight to concision, and the Attic gives negligible weight to Euphony.

That the Attic style emphasizes Clarity surprises no one, but claiming the Asiatic hyper-emphasizes Concision is unconventional. The prolixity of the Asiatic style is only apparent, however, the tightly worded but complex prose attaining heights of information compression. Appropriate even in its heyday only when conveying dense information, the Asiatic style was never the tool of choice for drafting a short business memo. Justice Cardozo — a master of both the Asiatic style, Attic style, and the shades between — explained that the Asiatic style is suitable to cases hinging on a nuanced probate instrument's interpretation.

Apart from the writer's spontaneous adaptation of style to material, semi-Asiatic styles serve purposes in brief writing. The style of writing is one of the few ways, for example, to appeal directly to the judge's emotions. When writing to a hostile court, the writer should use more Euphony, to create positive feelings that can become conditioned to your position and help improve the judge's opinion of it, and more Concision, to avoid, above all, trying the judge's patience.

To see a shift from a more Attic to a more Asiatic writing style, compare briefs I wrote to the California Supreme Court, before and after I learned of the court's hostility.

Issue Proliferation Exemplified

Gilmore v. Ashcroft is a high profile civil-liberties case, challenging parts of the Patriot Act's surveillance system. John Gilmore refused to submit to a search, required in the alternative to showing personal identification. What particularly disturbed Gilmore was the secrecy surrounding the legal requirements. Only unpublished Government directives authorized the ID requirement and its alternative.

Gilmore's brief to the 9th Circuit begins by stating these issues:

1. Does requiring a passenger to show a government-issued proof of identity in order to fly violate that passenger's right to travel?
2. Does requiring a passenger to show ID in order to fly violate that passenger's rights of assembly and redress?
3. Does requiring a passenger to show ID in order to fly violate that passenger's rights to be free from unseasonable searches and seizures?
4. Does forcing a passenger to choose between producing ID and being subjected to a more extensive search in order to travel violate the doctrine of unconstitutional conditions?
5. Does the secrecy of the Government's requirement that a passenger show ID in order to fly violate that passenger's right to due process?
6. Does Mr. Gilmore have standing to address the reasons for the ID requirement?
7. Does the District Court have jurisdiction to hear challenges to actions of the Transportation Security Administration and the Federal Aviation Administration as applied?
8. Did the District Court err in denying Mr. Gilmore's October 8, 2003 motion for request for judicial notice?
9. Did the District Court err in denying Mr. Gilmore leave to amend his complaint?

Although these issues may appear independent, the state of the law ties them tightly together. (See Issue Proliferation, ¶ 2.") Deprivation of a single mode of transportation, settled law holds, does not violate any fundamental rights. Only impermissible secret regulation of Gilmore's access to transportation could have infringed Gilmore's right to travel. Settled law also holds that if the subject is not punished for refusing a voluntary search, the 4th Amendment does not prohibit it. Gilmore's right to be free of unreasonable search was not, consequently, infringed by the contingency between acquiescing to the search and boarding a plane. If Gilmore's right to be free of search was implicated, it was because the search, based on secret law, was conducted without due process. Gilmore should have confined his brief to the single substantive issue that secret laws violate due process, because he could prevail on the other claims only by prevailing against secrecy. Gilmore would receive no additional relief, moreover, for enumerating additional bases sustaining the same rights.

Gilmore's approach to the procedural issues is also mistaken, for a different reason, as Gilmore should have ignored most of the substantive issues, but he had to face the procedural issues. He should have de-emphasized them, however, treating the procedural issues combined as a single sub-issue. The Government raised the procedural issues as obstacles to plaintiff Gilmore's substantive litigation. To the extent the court focuses on the procedural issues, the plaintiff, whom these issues bar, is on the road to losing.

The survival of secret federal laws is hard to imagine, when able counsel attacks them in a deep brief, comprehensive because limited to the single real issue. Where Gilmore raised nine issues on appeal, I would have raised one.

Mysteries of the Comma

Heavy and light punctuation are distinguished mainly by practices regarding non-restrictive modifiers, which heavy punctuation sets off by commas light punctuation omits, so that with light punctuation, many non-restrictive modifiers are punctuated the same way as restrictive. As long as the pattern is consistent, authors commit no outright error by populating documents with a greater or lesser comma density. While light punctuation is acceptable, even today's trend in fiction, better legal-writing practice affords less freedom. We can see why by asking what trade-offs characterize light and heavy punctuation practices. Heavy comma usage improves Clarity but impairs Concision, since Concision stands for less language, not only fewer words. Concision is information compression serving efficient comprehension, and a comma inserted sacrifices efficiency, when the added punctuation doesn't change the message imparted. This trade-off of Clarity for Concision means the recipient spends slightly more time reading a heavily punctuated document, but receiving more guidance from the author, is less prone to comprehension error and confusion.

Despite the greater Clarity heavy punctuation obtains, lawyers usually use light punctuation. Distinguishing restrictive and non-restrictive modifiers is one of the harder grammatical discriminations. Cognitive interference explains what makes the distinction difficult, even for lawyers. The restrictiveness of a modifier is a syntactic classification, but it parallels a similar dimension of meaning. Degree of restrictiveness in syntax comes in only two kinds, restrictive and non-restrictive, whereas restrictiveness in the world is infinitely varied. Restrictiveness "as a matter of law," that is, syntactic restrictiveness, contrasts with restrictiveness "as a question of fact,” semantic restrictiveness. The continuous dimension of actual restrictiveness cognitively conflicts and interferes with the categorical grammatical distinction between restrictive and non-restrictive modifiers. Trial attorneys, who dwell mostly in the world of fact, prefer writing with light punctuation, although they would rather read a heavily punctuated legal document.
[See also "The Underestimated Comma."]

Sentence Length

Conventional advice to legal writers underplays the advantages of complex sentences. Well-written complex sentences are not only more Euphonious than strings of short, choppy, simple ones but also afford additional hierarchical structure. The subordinate clauses of complex sentences serve a function analogous to footnotes, but unlike footnotes, subordinate clauses are not subtextual, as they do not incorporate matter less important than ordinary text, instead structuring the text itself. Complex sentences convey information about the relationship between clauses. Using simple sentences instead means either omitting the relational information, undermining Clarity, or including the relational matter discursively, undermining Concision.

The advice to use short and simple sentences includes particles of truth. One is that interclause relationships have diminished importance for some legal-writing purposes. Where the writer refers to clearly dispositive authority in a brief supporting a procedural motion, too much attention to interrelations may distract rather than clarify. Another particle of truth in the short-sentence advice is that shortening and simplifying sentence structure will improve many lawyers' writing. Short, simple sentences, easier to write than long, complex ones, can help avoid excess verbiage, grammatical error, and unintelligibility.

For lawyers who are not writers by choice, shortening and simplifying sentences is often good practical advice, but you should expect more from a ghostwriter.

Issue Proliferation

Death penalty cases now crowding the California Supreme Court docket share two prominent characteristics: each loses and each alleges many reversible errors. Where a Supreme Court hearing is of right, these characteristics are related. When a case is weak, yet one's future depends on it, you raise every barely tenable issue. What choice does one have?

Also true, if your case is strong, raising many issues on appeal is a way to lose. Yet many attorneys with strong cases raise weak or trivial issues on appeal. One reason is the superficial logic of appellate process, allowing you to win if the court agrees on any ultimate issue. As follows from elementary probability theory, even small independent increments can substantially raise the probability of winning, where the increments are sufficiently many. The problem with applying this logic is that the issues seldom are close to independent, and a closer analysis would show critical shared assumptions that make almost certain that the less plausible theories depend on the plausible ones. Usually, the author can be reasonably certain that if his strongest theories fail, the weaker ones will, even where the weaker would succeed if the stronger had succeeded.

A future essay should provide an example of the interdependence of most cases' potential issues, but here I want to comment on other causes of issue proliferation. Once attorneys accept the banefulness of prolixity, they may still hunger for issue surfeit, and understanding this appetite's origin can help attorneys accept a reduced issue set. Issue proliferation arises from academic practices, pleading myths, and personal involvement. In law school, academic tests consist of issue-spotting exercises, in which the law student tries to recognize the issues the professor's template credits. Law school tests don’t penalize students for confabulation, and issues the professor credits include those judges would hold frivolous. This training creates lawyers who may be good at spotting issues but bad at evaluating their importance. Law students readily accept the message, because years of schooling condition belief that longer is better. Recall those assignments to write a term paper at least fifteen pages long. Pleading practice, the second source of bad habits, is gripped by the myth that a ponderous complaint intimidates defendants, promoting early settlement. Some lawyers apply to briefs the numerosity-favoring principle the pleading myth conveys. Finally, if the attorney is also the petitioner, rage increases behavioral excitation more than inhibition, leaving the attorney without perspective.

The Great Footnote Debate

Bryan Garner (see http://tinyurl.com/5k4too) may be the foremost exponent of effective legal writing but, as with all geniuses' proposals, some of Garner's are quixotic. Garner wants to revise legal citation and footnoting conventions by placing all citations in footnotes and abolishing content footnotes. The normative legal string-on cite interrupts the flow of text according to Garner, and usurps the stress role, occurring at a sentence's end. Content footnotes serve no legitimate function because if relevant the footnote’s content should integrate with the text, and if insufficiently relevant for textual integration, the parenthetical matter should be extirpated outright, not exiled to marginalia.

But legal citations often contain optional amplification, which the standard citation formats bracket at the cite's end. The amplification succinctly shows how the case supports the author’s claim, quoting the case, paraphrasing it, or stating the holding in fact-specific terms. Optional for citation, the amplification is necessary for understanding, so placing the amplification in a footnote makes reading inefficient. In contrast, experienced attorneys adjust to the textual disruption, mitigating the grounds for Garner's objection to string-on cites.

Content footnotes provide a new bottom-most hierarchical level, where hierarchy is important for Clarity. A hierarchy of headings, numbering at least one and at most four, encases a brief and allows the reader to review the contentions at alternative levels of generality. A content footnote imparts information belonging to a hierarchical level one-step lower than body text. Footnotes should not be numerous, however, because Concision in a legal brief is too important to include subtextual detail. Content footnotes can answer the occasional frivolous argument that would be fatal if the court, improbably, adopts it. Responding to the yet unargued point in a footnote avoids granting the argument undeserved respectability.

Multi-Issue Integration

Clarity comes not just bottom up, by precise delineation, but also top down, combining points into reiteratively broader patterns. Integrating the discussion improves the reader's understanding and retention, but for most legal writers, integration stops at the issue level. A multi-issue brief typically does not significantly integrate issues. Discussing diverse issues in integrated fashion is harder than writing a separately integrated treatment of each issue, but the broadest integration most disposes the reader to a sensed closure.

Many lawyers choose ineffective presentation techniques because the courts' deliberative style misleads. A multi-issue judicial opinion must demonstrate independent resolution of each issue. A party's brief serves a different function and should not be modeled on judicial opinions. Achieving significant issue integration, without forgoing each issue's rigorous treatment, marks a superior brief.

Predicting Outcome

A competitor writes:

It is very difficult to predict when an appeal will be successful or when a trial court judge may not see things your way...[O]ur customer is solely responsible for gauging the probability of successs given the applicable law.

Predicting outcome is integral to preparing any brief, not just to assessing whether to file one. From numerous arguments, Concision requires sacrificing the ineffective for the persuasive. How many arguments to retain? The decision involves not only which arguments are most persuasive but how persuasive is each, so the ghostwriter can stop arguing when persuasiveness dips. The ghostwriter cannot choose the best argument set without estimating the likelihood that each argument will persuade the court.

Shallow research undermines the brief itself. The ghostwriter who refuses to assess the likelihood of prevailing probably does not master the applicable law.

Hours

Hirers of ghostwriters divide on wanting the best critical document or avoiding a practice-disrupting routine document. The wish pertaining decides the hours a project needs. Routine projects carry routine expectations, an unimportant demurrer going for five or six hours.

On a critical motion or appeal, the attorney would like victory assured to a practical certainty, a goal approachable but time-consuming to attain because the ghostwriter must pursue deeper understanding of the issues. He must not only know the dispositive holdings but understand why they must hold, understandings crucial to persuading the judge, rather than over-powering the opposition. Only if you persuade the judge can you be sure of prevailing.

The relationship is not linear between the ghostwriter's expertise and the hours needed to draft a critical document. With the writer's quickening apprehension of case law, he becomes more efficient over a five to ten year period. After that the writer continues to learn how to improve documents, so his best work takes longer.

Using Flow to Assess Persuasiveness

Non-writing attorneys often don't know what to look for to assess the persuasiveness of writing. Is it not self-evident? Persuasive writing persuades more. But more than what? An attorney wanting to assess the merits of potential ghostwriters could accurately judge the comparative persuasiveness of briefs arguing the same position. Although I have never heard of an attorney comparing writers in this way, the method is powerful, where your choices are limited to a few ghostwriters. If you try to assess persuasiveness without a control, the halo effect will bias your estimate by your position’s tenability. The easier the position to defend, the more persuasive the writing will appear.

Absent a controlled experiment, an attorney hiring a ghostwriter must isolate some persuasive characteristics of writing, rather than introspect his personal persuasion. Of all writing's directly perceptible attributes, the most informative about the effectiveness of the writing as such is its sense of flow. Flow means that the reader is informed of the relationship between the sentences without unneeded cues interrupting his thoughts. Flow is the major part of Clarity and an important instrumentality of Concision and Euphony. Flow concerns managing transition, but it is undermined by a surfeit of interrupting transitional terms.

Ghostwriting on Contingency

If your ghostwriter is sure of his skill and your case's merit, shouldn't he accept payment on contingency? Whether contingency payment is a good idea for you as customer depends on how much control over the product you want to cede to your writer. If you insist on exercising your right of control over content and style, then you cannot reasonably expect your ghostwriter to accept a contingency over which you exercise the greater control. If you are a lawyer, you will not want to give up your right of control, although if you made a wise choice for ghostwriter, you ought to follow his recommendations in most instances.

On the other hand, everyone responds to incentives. A professional may think he does his best regardless of the specific incentives, but this is illusion or self-deception. Making a minor part of the fee contingent provides an incentive for best performance, without impairing the ghostwriter's disinterest in the content.

What part of the fee do we perceive as significant but minor? From social practices that involve ascertaining a small but significant part — from tithing to tipping — treating 15% + - 5% of the fee as contingent should have a salutary effect.

What makes some writing difficult to read?

If you listen to exponents of the "plain English" school, you would infer there are two ultimate factors that determine the level of difficulty of a piece of writing. These factors are inherent difficulty of the subject matter and amount of artificial complexity imposed by bad writing. Hence, the common advice that writing should be as difficult as the subject matter requires but no more.

Complexity in writing is more complicated. A writer tailors his writing for his audience by modifying the three ultimate factors' weights. While submitting to Concision's pre-eminence, legal writing places relatively great weight on Clarity. Concision and Clarity eventually conflict, and the writer will settle such disputes more often in favor of Clarity when writing a legal brief, more often for Concision in blog writing.

Overselling Clarity ignores the reader's motivation, whether the motivation to read as many words as the prolix writer adds or any part of a dull-sounding, uneuphonous writing. The weights that the writer should place on Clarity or against Concision and Euphony depend on the intended-readers' motivation. A judge's motivation remains important despite his captivity as audience, since reading can be more or less thorough, more or less sympathetic, and part of this adjustment occurs outside the reader's awareness. Still, motivation becomes less important, and with it, the writing Virtues that drive reader motivation, Concision and Euphony.

Readers call writing difficult to read when they prefer more Clarity. But writing becomes less clear not only when the subject matter is difficult or flaws conceal meaning. Writing also becomes less clear because Clarity compromises with Euphony and Concision.

What is the greatest writing virtue of them all?

Writing skill consists of three virtues: Clarity, Concision, and Euphony. In legal brief writing, most writers would rank the virtues in that order. But clarity is paramount in legal writing not primarily as a writing skill. Broad clarity depends primarily on what you say rather than how you say it, and achieving broad clarity depends most on knowing the law, learning the research, and formulating precise arguments. This broad, foundational clarity is defeated by the predominant writing method in law, assembling scraps of information. Better writing won't save the brief drafted by these flawed compositional methods.

This equivocation about clarity's scope allows panaceaists to oversell Clarity. Once you separate clarity in conceptualization from pure writing Clarity, it is not chairman of the writing virtues. The honor of centrality belongs to Concision. First, Concision is most aligned with the basic function of writing. A given written work is first and foremost an act of information compression, as rarely do we communicate propositions lacking alternative means of transmission or discovery. The goal is to convey as much as is relevant as efficiently as possible. Second, Clarity is overvalued not only because of the confusion about its source but also because of the marketability of its pedagogy. Using many words, most anyone can make an idea clear, provided he understands it. Concision and Clarity both cooperate and conflict because you achieve Concision by eliminating the obvious — that which, if included, would only marginally clarify. Efforts focused on Clarity render still worse a verbose work, too boring to read.

Abstraction

If other writing panaceas — short sentences and active voice — take a harsh toll in the Euphony Virtue, the concrete-words panacea strikes at Concision and Clarity. The recommendation to use concrete words and avoid abstraction arose as a desperate reaction to the pseudo-abstract, high-blown cliché that remains dominant in business and government. Vexing indeed to hear some real-estate agent expound what her issue is "relative to." Technical writing's increased importance and autistic spectrum disorder's surprisingly high incidence among that genre's readers may have reinforced and spread this business-oriented corrective. Even mild autism carries an inability to grasp higher abstractions.

That concrete terms are apprehended faster than abstract ones is a useful result of cognitive science. From this well-established result, it follows that where an abstract and concrete term convey the same meaning, the concrete term is better. The abstract and concrete term convey the same meaning in only a single circumstance, when the concrete term is the referent, and the abstract term is over-inclusive. Thus, if you refer to one person having "received communication from” when you mean "heard," your more abstract concept, "communication," is also over-inclusive, as it potentially includes writing. The concrete word, "heard," is better.

Even this limited rule has exceptions, one of them being cross-domain linkage. In a legal brief, substituting abstractions for concrete words is a way of linking your facts to law or an authoritative holding to the facts of your case. Linking court holdings to your facts through intermediary abstractions is often the threshold for a minimally competent brief, and the most damaging single omission in legal briefs is failure to characterize a statute or holding abstractly to relate it to the facts of your case. I blame the anti-abstractionists' advice for some of lawyers' failure to characterize. You can find a nonlegal example of the use of abstraction for characterization the Disputed Issues posting, A Rare Shortcut to Better Writing, where occurs, "The physical aspect of writing is little considered, but the method used to transform thought into writing creates a bottleneck for thought, which draws upon a limited pool of cognitive resources, some used in the physical labor of externalizing thought." The abstractions "physical aspect," "bottleneck for thought," "limited pool of cognitive resources," serve Concision by linking specific contentions about typing to general concepts of cognitive psychology, while "transform thought into writing" and "externalizing thought" serve Clarity by maintaining a parallel level of abstraction throughout the sentence.

Abstraction can also improve Clarity, by unifying a document. A brief will contain a few abstract themes, often relating to your legal theory, and these terms should be strung through the brief to create a cohesive whole. In the present essay, “abstraction" itself is a key thematic unifier; in "Rare Shortcut," "resources" is the oft-repeated unifying theme.

Compared to the opposed defect, insufficient abstraction is the greater evil except in the most mundane business correspondence.

Repetitiveness

Trial-attorney briefs are usually repetitive, a quality that both insults and confuses a judge. The insult comes from under-valuing judicial economy; the confusion, from compelling the judge to interpret redundancy. As to the first, almost everyone these days takes it as a point of pride that others think they are busy people, which judges are. The second point, regarding confusion, applies partly because of lawyers and judges' training in the art of construing texts and partly because this training reinforces natural interpretive processes. When a judge interprets a statute or a contract, he follows a canon disfavoring surplusage, one that instructs a lawyer to assign significance to the entire document. This preference formalizes ordinary interpretive methods and accentuates the ordinary tendency. The result, repetitiveness presses for explanation as non-redundant. The effort to repeat to stamp in claims turns against itself, each repetition creating a somewhat different super-imposed meaning, unpredictable by the writer because unintended.

Another separate way that brute repetitiveness proves self-defeating arises from habituation, in which repeating a stimulus causes the progressive weakening of associated responses. This is the process allowing an organism to ignore constant background stimuli for changes in the foreground of perception. Repeating a proposition decreases its power to move to action, the judge's favorable action being what you seek. One may thus succeed in getting the judge to recollect your argument, at the cost of his seeing its significance.

Trial attorneys may try to repeat themselves, but they could spare themselves that effort. If you make no effort to avoid repetitiveness, it naturally insinuates itself, as repetitiveness is a primary indicator of failed organization. Many trial attorneys even some appellate attorneys consider it helpful to repeat key points, due to confusing recall with persuasion. Conventional English instruction reinforces the repetitive tendency. English teachers tell their high school students to tell the audience what you will say, say it, and tell what you have said, a practice less damaging in writing for purposes besides persuasion.

The persuasive legal writer's goal is to avoid insult, miscue, and habituation, while keeping the favorable effects on recall. The writer achieves this goal by replacing textual repetitiveness by structural and thematic repetition. The writer repeats structurally without being repetitive by encapsulating the brief in a robust set of headings and a detailed, hierarchical table of contents; thematically, by using a small, inter-related set of abstract concepts throughout the brief. These techniques provide the advantages of textual repetitiveness without its inefficiency, prolixity, and misdirection.

A Rare Shortcut to Better Writing

Helping attorneys choose better ghostwriters, my mission in Disputed Issues, is more modest —and more self-serving — than inculcating writing skill. Not that Disputed Issues would think to withhold a panacea for writing problems, even to protect a trade secret. Panaceas for writing problems are indeed often promised. I recall a law school professor who required students to rewrite any passive voice sentence into active, and he advertised that this one change would work tremendous improvement in student writing. Solutions on offer in the popular culture are as simplistic, with short sentences the current favorite. Even some well-respected works, such as Strunk, include panacea mongering. If Disputed Issues eschews improving the writing skills of the masses — or even of the lawyers among them — the reality that the panaceas are mirages figures as at least one of the main reasons. But if a true writing panacea exists, you almost certainly don't know it because the numerous popular solutions do not lack exponents. I am aware of no advocate of my suggestion, which also affords a quick and dirty way to estimate the writing skills of a ghostwriter whose hire you are considering. My advice is: put serious effort into improving your typing speed.

The physical aspect of writing is little considered, but the method used to transform thought into writing creates a bottleneck for thought, which draws upon a limited pool of cognitive resources, some used in the physical labor of externalizing thought. Mental-resource limitation is the basis for the intuition that the stupid person is unable to walk and chew gum simultaneously and is the reason that multitasking has rightly fallen into disrepute. When you devote resources to the physical process of writing, they are unavailable for thinking, diminishing your ability to think the thought you would transfer to a medium. One of the most well-researched examples of resource limitation is channel capacity. Each sensory modality has a channel capacity that is semi-autonomous from other channels, so that if you try to look at one thing and listen to another, you will be more successful than if you listen to two different things, piped to opposite ears.

Logically, this limitation of resources presents two ways to improve performance on the focal task: decreasing the resources that the brain must devote to competing tasks and choosing methods that have fewer overlapping resources. Improving your typing speed will decrease your use of resources at any given speed, as gaining skill amounts to making processing more automatic, and automatized processes are almost free of resource costs. Typing also involves less resource competition than alternative methods of output. Your dominant hemisphere, which takes the leading role in verbal thought, controls your dominant hand, usually one's unique instrumentality for handwriting. In being a linear process, typing also uses primarily the dominant hemisphere, but the labor is distributed over both hands, allowing the noncompeting nondominant to play a role. The other alternative to typing, dictation, drains the same resources involved in thought, because producing a stream of natural language, compared to striking keys or even writing with pen or pencil, is more akin to the language of thought.

In more obvious ways as well, the labor of transcription interferes with production of written work. The more arduous the work of transcription, the more the writer must buck the instinct for laziness, but with greater automatization and less attention, the physical work becomes less boring. The physical aspect of writing is often one of the least inviting. I predict that a substantial improvement in typing speed would cure many a case of writer's block.

You may not believe me without trying it. Once convinced, you have also gained a secret, slightly base way to screen prospective ghostwriters, if you discover their typing speed.

Prolixity

Although emotional appeals further some nonlegal writing purposes, verbosity is always a cardinal sin. Its avoidance, concision, has three components: succinctness, tight, not wordy; organization, efficient, not repetitive; and relevance, undigressive, not padded.

The legal writer must know the law, to distinguish everything and only that which advances the client's cause. Prolix irrelevance is the most glaring offense in legal writing, but relevance, unlike concision's other aspects, emerges from legal understanding rather than writing skill. Prolixity always injures the court's comprehension because writing conveys meaning through patterns of inclusion and omission, prolix irrelevance miscuing the court.

Avoiding prolixity operates in tension with another commandment, avoiding superficiality. While strict relevance is more important than trial attorneys realize, thoroughness trumps relevance when they conflict, as happens when the writer lacks a firm grasp the relevant law's contour's. Omitting a crucial contention often waives it. Every competent attorney has a healthy fear of waiver and, if in doubt about relevance, errs toward inclusion.

The treatment for prolixity consists of understanding applicable law. Your ghostwriter should learn the governing substantive law before writing your brief. The ghostwriter should have an exceptional understanding of procedural law, the law of evidence, and the law of remedies, since these laws constrain relevance.

Emotionalization

Using emotional appeals in briefs generates much emotion, both in those discussing that subject and in their judicial audience. The judge's emotional reaction, unfortunately, will not be the one you want. MoneyLaw locates emotionalization’s counter-persuasiveness in an implied request for judicial partiality, a request the court must refuse and what is worse, a pressure it must resist. (See http://tinyurl.com/263ntg and http://tinyurl.com/yqrsuv; see also http://tinyurl.com/2zns7y)

The goals of the target audience control its response to attempted persuasion, and any judicial system must impose two reciprocal demands on its officers: avoiding reversal and managing caseload. (See http://tinyurl.com/ytkwxt) A judge's susceptibility to emotional influence increases his cases-reversed, because procedure sanitizes irrelevant or grossly excessive emotionalism from the record before it reaches the appellate court. To avoid reversal, the judge must invest mental energy resisting untoward persuasion , energy subtracted from rehearsing your arguments. Insofar as the irrelevant matter gets in the judge's way, it will frustrate and make him angry — with you or your client, not the character you failed to assassinate.

Some attorneys will not relinquish hope of applying our most powerful persuasive methods to legal argument. (See for example http://tinyurl.com/2huwdh) Exclusion from 1st Amendment protection marks libel's persuasive power, and under the litigation privilege, attorneys can incorporate allegations otherwise actionable. But the immensity of the task you impose on the judge to remain impartial stands in direct proportion to the effort he must expend to avoid your undue influence, effort subtracted from understanding and rehearsing your brief, a burden diminishing judicial sympathy.

Legal-writing and legal-process courses, typically teaching "Legal Realist" doctrine — holding that courts decide based on the equities and accept arguments corroborating their moralism —foster naïve methods of persuasion. Judges differ on questions of moral equity, subjecting moralistic decisions to reversal, except where the issues elicit no conflicting moral intuitions. Even then, emotional amplification defeats persuasion.

Beware of the ghostwriter who stridently asserts your client's rectitude or the opponent-party's nefariousness. Shrillness will not conceal an illicit cry for help.

Finding a persuasive ghostwriter

This blog helps attorneys select persuasive ghostwriters. Professional persuaders themselves, many attorneys assume they ably appraise written effectiveness. The authoritative critiques of common brief-writing practices should give pause, as when lawyers flout recommendations favoring concision by filing lengthy, even padded briefs, which legal-writing experts claim judges are indisposed to read, understand, or believe. Many attorneys apply superfluous legal jargon; whereas, the experts cite scientific studies showing plain English enjoys greater judicial regard. The attorneys who draft wordy, jargon-laden briefs try to persuade. If the experts reject some of their long-cherished practices, the lawyers plainly fail to distinguish persuasive from unpersuasive if the experts are right.

A contestable condition the experts' correctness, unlike law, where authoritativeness constructs rightness. Most attorneys have heard the authorities' advice and either reject it as erroneous or disregard it as insignificant. Although the occasional scientific study is performed, expert opinion is mostly folklore, no less than practitioners’ habitual practices and typical beliefs. Here enters this blog, premised on criticizing traditional practices, without blind counter-reliance. Disputed Issues contests traditionalist belief without receiving modernity's truth; it explores why lawyers ignore good writing advice, whether perceptual illusion or cognitive confusion beguiles. Analyzing error improves judgment.