Tuesday, July 29, 2014

Plain-talk writing countersignals power

Since unexplained consensus is a form of evidence, an important question is this: why have the opponents of legalese converged on plain-talk writing? (If you suspect I overstate the dominance of plain-talk, for an example see a recent piece by legal-writing author Mark Herrmann, who urges legal-brief writers to write like best-selling authors and average at most 15 words per sentence: “Care to write in a style that encourages people to read? You could do worse than to model your writing on the work of bestselling authors, couldn’t you?”) The explanation I propose for the dominant two camps is that legalese signals power and plain-talk writing countersignals greater power.

Signaling theory was a previous topic. Agents signal when they demonstrate possession of a valued trait by incurring costs that would deter those with lesser endowments; they countersignal when their audiences are informed through other sources that the agent is at least middling on the valued trait, so abstaining-from-signaling signals not needing to signal.

Feltovich, Harbaugh, and To list of examples of signaling and countersignaling:

The nouveau riche flaunt their wealth, but the old rich scorn such gauche displays. Minor officials prove their status with petty displays of authority, while the truly powerful show their strength through gestures of magnanimity. People of average education show off the studied regularity of their script, but the well-educated often scribble illegibly. Mediocre students answer a teacher’s easy questions, but the best students are embarrassed to prove their knowledge of trivial points. Acquaintances show their good intentions by politely ignoring one’s flaws, while close friends show intimacy by teasingly highlighting them. People of moderate ability seek formal credentials to impress employers and society, but the talented often downplay their credentials even if they have bothered to obtain them. A person of average reputation defensively refutes accusations against his character, while a highly respected person finds it demeaning to dignify accusations with a response.
To clarify the countersignaling concept still further, it will help to illustrate its application. A political scientist footnotes: “I do not claim to have mastered these highly technical papers. Their results, however, cannot be more robust than their premises, and it is the latter which I criticized in the text.” (Jon Elster, The cement of society: A study in social order (1989).)

Elster’s comment is slightly surprising because one common intellectual signal in academia is mastery of an arcane formalism. To signal intellect this way, an author should demonstrate understanding, not gratuitously admit partial incomprehension attributable to the author’s insufficient learning. Elster does much to demonstrate mastery of a huge amount of analysis, and because of that and the typical reader’s knowledge of his research record, not only can afford to honestly admit his lack of comprehension but actually comes off “looking better” for his frank admission. (You might think an alternative explanation is that Elster is intellectually honest; this I don’t doubt, but signaling theory may reduce intellectual honesty to self-promotion by countersignaling—or forming advantageous countersignalling habits.)

The signaling/countersignaling framework illuminates the opposition (and false dilemma) between legalese and plain-talk writing: legalese is a form of signaling, and plain-talk writing of countersignaling.

I’ve previously contended that using legalese signals power, and a recent social-psychology study implicates the use of abstraction. (C.J. Wakslak; P.K. Smith, and A. Han, Using abstract language signals power, JPSP, 107(1) (July 2014) [“Abstract language use appears to affect perceived power because it seems to reflect both a willingness to judge and a general style of abstract thinking.”] (HT: Overcoming Bias.) Hyper-abstract (truly, pseudo-abstract) language is a defining characteristic of legalese.

When an attorney’s power is incontestable, whether due to the quality of work product or extent of connections and affiliations, it not only becomes unnecessary to incur the costs of an opaque writing style, but by writing plainly, some attorneys can signal that they are above needing to, because avoiding the obtrusive signal of power can, with additional information, come to signal greater power.

Although the costs of countersignaling are less than those of signaling, they’re still onerous. To maintain the clearest discriminability from the middle-status legalese writers, plain writers will avoid useful abstraction (and its paraphernalia, such as varied sentence length). The same signaling logic applies to other versions of pseudo-abstract writing, such as bureaucratese and academese, in other realms where signaling of power is important and a plain-talk-writing trend with higher status supervenes.

Sunday, April 20, 2014

The polar forms of writing—formal and informal—and the poor prospects for intermediates

Formal prose, I’ve emphasized, is a writing style, a distinct type of writing, differing from the informal in its ideals and aspirations: precise argument or spontaneous conversation. Is compromise possible between these writing types? There are exceptions, but mostly, the answer is no.

I’ve previously approached this stylistic distinction through a construal-level-theory analysis; linguist John McWhorter implies similar conclusions by his insights into the most informal written forms, such as text messaging, through which he highlights the distinctive character of conversation and from which derive many of the customs of social media. With educated talkers using sentences of only 7 to 10 words, the “grand old defining properties” of spoken language (due to talking being “largely subconscious and rapid,” writing and reading “deliberate and slow”) are “brevity, improvisation, and in-the-moment quality.” As McWhorter (“Talking with Your Fingers,” (April 2012)) assesses the state of contemporary language, “Two forms of language coexist in societies: choppy speech and crafted prose.”

Some combinations of the two forms succeed. McWhorter mentions one example: the anthropological novelists combined formal prose with dialog imitating speech. Another intermediate form is of key interest to legal-brief writers: the practical style adapts the formal-prose style to expressing belief rather than opinion. These are careful exceptions to the general rule that combining informal and formal styles is just bad writing. (The “formal-prose” style shouldn’t be confused with the “writing formalities,” which should be compromised.)

But the “plain-writing” trend advises writers to craft choppy prose! Trying to satisfy simultaneously the formal ideal of far-mode clarity and the informal ideal of near-mode immediacy and spontaneity is usually misguided, and perhaps it is also misguided to combine them successively—in different pieces. Can you be a master of both styles, while using them at different times for different purposes? Maybe, but probably not. Each style has its own habits, and writers who practice a great deal of conversation (whether by talking or texting) often seem to do so to their writing detriment; and the reverse, formal writers may deteriorate as conversationalists.

Improving at one task (such as conversation) conflicts with improving at another (such as formal writing) when they call for similar but different responses to the same or similar situations. An example of tasks calling for different responses to the same situation is typing using Dvorak and QWERTY layouts: if the task is typing a comma, you must type what would be a ‘w’ on a QWERTY keyboard, and you will lose proficiency in making one  response by learning the other. An example calling for different responses to similar situations is executing a forehand drive in tennis and table tennis: practicing one harms the other. Learning a task negatively transfers to the other when the latter requires inhibiting the response first learned; the extra effort to inhibit the behavior previously practiced makes it harder. If you practice Dvorak, you’ll have to inhibit the habit of typing ‘w’ when you type a comma; if you practice tennis, you'll have to inhibit your tendency to minimize wrist action when playing table tennis.

McWhorter explains, “Spoken language is fundamental, while written language is an artifice.” The habits, even instincts, ingrained in talk are the primary targets of inhibition in crafting formal prose; practicing talk, whether by actually talking, texting, or writing in the plain-talk style, harms your formal writing. But, just as some few may productively use different typing layouts, individuals probably vary in the harm to their formal writing due to negative transfer from conversation or informal writing.

Tuesday, February 25, 2014

The new topic/stress principle: Topic is concrete, stress abstract

Recall the sequence (concrete to abstract, near to far):

conversation – informal prose – formal prose – poetry

Formal prose is a style of writing that evolved—primarily to serve abstract matters, where clarity is the central virtue—to exploit the specific virtues of written discourse. It is far-mode clarity that is most prized in this style; near-mode is essential but subordinate. To subordinate near to far, formal prose uses a characteristic device at various structural levels: new matter is introduced in far mode and developed in near mode.

At the sentence level, this is accomplished by an application of topic/stress segmentation: the stress—which introduces important new information—is abstract; the topic—which recapitulates old information—is concrete.

Definitions and principles

In formal prose (which includes the most effective legal-brief writing), the topic (usually the sentence subject) announces what the sentence is about, often through association with previous information. The stress position (I’ll continue using the term despite the technical misnomer) refers to the last word or words before a period, colon, semicolon, and sometimes a dash; it contains important new information. (We know this about topic and stress mainly due to the work of Joseph Williams and George Gopen.)

Construal-level theory links concreteness to psychological proximity and abstractness to psychological distance. In sentence processing, the topic’s position is near and the stress’s position is far, and formal prose not only honors the topic and stress positions, their contents are typically concrete and abstract respectively, to correspond with their near and far locations in the sentence. New information is first presented abstractly in the stress position and then developed concretely by being recapitulated in a more specific form in the topics of subsequent sentences.

A counter-example?

The reader expects the topic to be concrete and the stress abstract, and each receives greatest emphasis when they satisfy the expectation. This observation answers a counterexample offered by Wayne Schiess, purporting to show that the topic is more important than the stress:
To me, number one emphasizes President Bush more. 
(1) President Bush made mistakes.
(2) Mistakes were made by President Bush.
Addressing Wayne’s argument fills a lacuna in topic/stress theory: what determines the stress-position’s size? Although “President Bush” constitutes a terminal phrase in number two, that phrase—referencing a near-mode concrete particular rather than a far-mode disposition—isn’t well suited to receive stress. The reader expands the stress position to encompass a suitable abstraction, which it finds in the sentence’s predicate, “were made,” which the sentence emphasizes.

(Generalizations like this new topic/stress principle are often best used to sharpen intuition rather than to replace it. I don’t think it would have occurred to me that number two emphasizes the predicate without its aid, but once I’ve applied the principle, the intuition perseveres.)

Rewriting the “writing rules”

The new topic/stress principle grounds, consolidates, and corrects several established “writing rules.”

Avoid nominalization is one-sided over-reaction; nominalization creates far-mode abstractions, commonly suitable in the stress but not, such as to supplement an excessively abstract verb, in the topic’s vicinity.

Favor agents as subjects is a simplistic rendition of formal-prose’s preference for concrete topics.

Concrete examples should precede new abstractions describes a practice in the (informal, near-mode) plain style, unsuited for formal prose.

Wednesday, February 5, 2014

“Stress position” is a misnomer: Explaining structural emphasis

The practice of locating important new information at the end of a proposition (the “stress position”) is undervalued and misunderstood by most writing authorities, and in actual legal writing, it is rare. The widespread ignorance of the “fundamental principle of advanced writing” is illustrated by a major legal-writing teacher’sremarkable comment: “This is surely subjective, and some will disagree, but I generally teach my students to use the beginnings of sentences (and of paragraphs and of entire documents) as stress positions.” Locating what belongs in the stress position at the beginning of a sentence (the “topic”) is the most common way the stress position is ignored in professional writing.

Why hasn’t topic/stress practice penetrated professional writing? One reason I’ve suggested is that its exponents haven’t provided a compelling explanation for why stress position is emphatic; the very term “stress position” is a misnomer insofar as it is based on the stress patterns of English phonology. The most obvious point to make against the phonological theory is that English declarative sentences, in fact, don’t end in rising pitch—questions do. More importantly, where in the sentence pitch rises and where it falls depends on phonological vagaries, and for previously mentioned reasons, as well, it’s implausible that one of the two principal structural means for creating emphasis in English (the other being brevity) depends on the language’s peculiarities.

A more promising explanation is provided by Thomas and Turner, who explain stress position as deriving from an intellectual schema modeling discourse on a journey where paramount, corresponding to the stress, is destination; and a second prominent point, corresponding to the topic, is the origin. (Clear and simple as the truth (2nd ed. 2011), at p. 64.) In the Thomas and Turner view, respect for the stress position is an aspect of formal prose. But as an explanation for the role of the stress position in formal writing, it’s insufficient: it doesn’t explain why formal writing pervasively uses a particular intellectual schema, that of a journey.

Thomas and Turner have it right that the explanation for the stress position should be found, not in the idiosyncrasies of specific languages, but in the logic of formal prose. Stress position is part of the formal-writing strategy, and it transcends specific languages. (Mystifyingly, Thomas and Turner describe the “stress position” as a phenomenon specific to English.) “Stress position” isn’t an outgrowth of phonological patterns in ordinary conversation, which predominantly relies for emphasis on body language and spontaneous modulation of pitch and rhythm.

Formal prose is a specific style, one accentuating far-mode; it is a style serving to evoke receptivity to abstraction, since formal prose serves discourse about abstractions. “Far-mode” is a construct in construal-level theory, which correlates perceived physical and logical distance with abstract conceptualization. Construal-level theory entails that readers construe the beginning of a sentence concretely and its end abstractly, since, at the point where they activate a schema for understanding the sentence, its beginning (the topic) is near and the end (the stress) is far. By locating it at the end, the writer fosters an abstract construal of important new information. As a byproduct of this technique for fostering abstraction, the formal writer also gains a structural signal for importance. 

Wednesday, January 15, 2014

“Formal” and “informal” writing differ in word order

Not incessantly but at least occasionally, unobtrusively yet obviously—formal writing hovers on the edge of awkwardness. This is unremarked by the authorities, as is the explanation: formal writing’s proclivity to violate standard word order.

Standard word order in English

Contemporary English language is intermediate among languages in the rigidity of its word order, neither strictly obligatory like Latin nor absent like Chinese. (Owen Barfield, Poetic Diction: A Study in Meaning (1984).) Perhaps this averageness conceals the pragmatic importance of word order in English, but a hallmark of formal writing (“classic prose”) is that it sacrifices “Naturalness” for “Succinctness,” which is to say, cognitive fluency for cohesiveness and proportioned emphasis.

The standard English word order is:

Subject – Verb – Object – Adverbial modifiers

This standard word order is obeyed more consistently in informal writing because writing that takes conversation as its model is inspired by the ideal of spontaneity, an impression contrived word order subverts.

Here’s an example of a sentence written for proportioned emphasis and rewritten for conversationality.

California may be unique in unconstitutionally allowing its attorney guild to enforce its self-adjudicated costs as a judgment, but the universal state-bar practice of charging costs to respondents (regardless of how the state bars can collect them) derives from changes in the criminal law that, despite their legality, damage the system’s integrity: policies of victim restitution and social restitution.

California may be unique in unconstitutionally allowing its attorney guild to enforce its self-adjudicated costs as a judgment, but the universal state-bar practice of charging costs to respondents (regardless of how the state bars can collect them) derives from changes in the criminal law that damage the system’s integrity despite their legality: policies of victim restitution and social restitution.

In the formal or “classic prose” version, the adverbial modifier “despite their legality” is placed after the subject and before the verb of the subordinate that clause. In the conversational rendition, the modifier occurs in the stress position preceding the colon, the standard English word order. The classic-prose version is clearer because “damage the system’s integrity,” which occupies the stress position, adds the most important new information. But because breaching standard English word order is disfluent, the classic-prose version is slightly awkward.  

Recouping fluency with the comma

Formal writing is awkward in the manner of poetry. One reason (not the only reason) poetry is harder to read than prose is that it takes liberties with the standard English word order. In its sacrifice of fluency for emphasis, formal writing is intermediate between oral conversation and poetry:

Oral conversation – Informal writing – Formal writing – Poetry

Offsetting its often novel word order, poetry has means of recouping some measure of cognitive fluency: verse and rhyme. Classic prose’s palliative is the lowly comma. In the classic-prose version, the displaced modifying phrase is set off by commas despite its restrictive character. Glimpses of this important use of the comma can be seen in rules concerning “interruptive phrases,” but in the conversational example, the despite phrase isn’t interruptive. It’s just out of order. Another partial application of the principle that violations of standard word order call for commas is the rule to set off a periodic sentence’s introductory modifiers.

Remaining issues

Allowing the nature of contemporary English, occupying a middle ground between structured and unstructured language, it remains odd that the standard authorities have failed to notice this distinguishing difference between formal and informal writing, but some responsibility may fall to certain gaps in Joseph M. Williams and George D. Gapon’s topic/stress theory of sentence organization:  1) the stress position is said to be unique to English; and 2) it originated in conversation.

These two facts raise theoretical problems. If stress position is critically important for emphasis in English, do other languages each have their own idiosyncratic means of emphasis? This seems dubious: if language were inherently inclined to developing syntactic cues to emphasis, it’s unlikely that only English would have seized on stress position and topic/stress structure, whose congruence with general primacy/recency effects is unlikely to be coincidental. The other fact, the origin of stress position in oral communication, is in tension with the observation that formal writing accentuates use of the stress position: why was the limited usefulness of stress position in oral communication, which is aided immeasurably by nonverbal communication, sufficient to secure that position’s role?

I leave these issues for future treatment.

Friday, December 6, 2013

Psychological roots of writers’ resistance to clarity

Most lawyers disregard the most useful principle of advanced writing: put new important matter at the sentence end (the stress position). This neglect itself provides insight into the nature of the resistances to clear professional and intellectual writing.

We should first be exact about the degree to which writing authorities ignore the stress position. Bryan Garner represents the mainstream, and he cites six other authorities for this advice: “To write forcefully, end sentences with a punch.” (The Winning Brief, Tip 36.) Garner concretizes his advice in an injunction against ending sentences with a date, citation, client’s name, or qualifying phrase. (Garner, perplexingly, also suggests the test of exaggerating the last word in each sentence while reading aloud. “If the reading sounds foolish then the sentence probably needs to be recast.” Garner’s emphasis on how the sentence sounds will prove instructive, but even anticipating that Garner’s test will misidentify many bad sentences as good, it will also misidentify good sentences as bad—simply because the stress position is more extensive than the final word.)

Garner understates the importance of emphasis by limiting stress-position errors to missed opportunities; he ignores the more important errors of misdirection—as do his six supporting authorities. Emphasis is underappreciated (unemphasized) by most authorities; distinguishing the important from the unimportant is central to grasping meaning, never itself exact but capable only of approximation. Why is it hard to understand that misleading emphasis compromises not just “forcefulness” but clarity?

Since clarity arises from emphasis, forcefulness is clarity. Here may lay the problem: the quest for clarity is inevitably imbued with the human ambivalence toward exercise of power—of which influence is a kind.

Writing aspiring to clarity and to apportioned emphasis—regardless of whether it succeeds in either—is often termed “formal”; yet defining formality has proven elusive. One recent attempt is found in James W. Pennebaker’s book The Secret Life of Pronouns, which distinguishes from the analytic and narrative writing styles a formal style. But Pennebaker is able to characterize formality only pejoratively: humorless, pompous, and stiff; Pennebaker finds formal style correlated with aspirations to social status. The associations in Pennebaker’s work between clarity and power are striking: influence, status, emphasis, forcefulness, pomposity, even “stiffness.” Pennebaker expresses human ambivalence to power by defining “formal” writing by its failures.

Expressing this same ambivalence, writers who seek that variety of power called intellectual influence confront emotional impediments to mastering formal writing (“classic prose”). Resistance to recognizing the stress-position’s importance—stress or emphasis equaling force or power—epitomizes this internal conflict. Imprecision stimulates the affiliative appetite for conversation, a taste writers seeking legal persuasiveness or intellectual influence must forgo.

Thursday, November 14, 2013

Constructing sentences for precise emphasis: The fundamental principle of advanced writing



A legal-writing authority advises:

 View your reader as a companionable friend—someone with a warm sense of humor and a love of simple directness. Write like you're actually talking to that friend, but talking with enough leisure to frame your thoughts concisely and interestingly. John R. Trimble, Writing with Style 73 (2d ed. 2000). (HT: Bryan Garner, Usage Tip of the Day, November 12, 2013.)

Some writers hail Trimble’s advice as profound, while others ignore it as meaningless, but I hold it is quite wrong. Legal-brief writing (like other efforts at exerting intellectual influence) differs from conversation not just in degree: influential intellectual writing differs from conversation in its guiding formal virtue. Whereas good conversation is (or seems) spontaneous, good writing is clear.

One way the difference manifests is that competent writers force important new ideas to the sentence’s end. The last word or tight phrase preceding the point of syntactic closure (period, semicolon, or colon) is termed by Joseph M. Williams (Style: Toward Clarity and Grace) the stress position; and according to another student of sentence structure, George D. Gopen (A new approach to legal writing), failure to exploit the stress position is legal-writers’ single greatest formal weakness: out of hundreds of lawyers Gopen has trained, the stress position was properly used by a handful. Proper use of the stress position is at the threshold of competent writing, but misuse of the stress position doesn’t always sound bad. Locating trivia in the stress position produces limp sentences, but often lawyers fill the stress position with misleading substantive language. When a document contains sentences with misleading emphases, readers—due to conflicting cues about what’s important—find the document’s meaning hazy.

The stress position isn’t unique to written English; spoken English sentences end in higher pitch, but in spoken English, stress position is subordinate to nonverbal cues. It is also subordinate to standard word order, which conversation usually follows because reorganized sentences sound contrived, violating the conversational norm favoring spontaneity. Take as an example the previous paragraph’s final sentence, which trades moderate disfluency for high clarity:
When a document contains sentences with misleading emphases, readers—due to conflicting cues about what’s important—find its meaning hazy.
This is too contrived for good conversation; without the engineered word order, we might say:
Readers find a document’s meaning hazy, due to conflicting cues about what’s important, when it contains sentences with misleading emphases.
The talk version beats the clear version in cognitive fluency (and in apparent spontaneity), but it loses in clarity (partly) because of its misuse of the stress position. Hazy meaning is the sentence’s key contribution, whereas the talk version stresses misleading emphases, an idea previously introduced. Stress position isn’t the only way reorganized sentence structure departs from talk, but Gopen’s experience indicates that, in legal writing, it’s the most ignored. Exploiting the stress position requires sentences differing from talk.

Haziness takes a toll on all argumentative writing; in abstract endeavors, it detracts from thought itself. With clarity being much about emphasis, reorganizing sentence structure is a medium through which clear writing deepens thought. (“Plain-talk writing” is inherently inimical to clear thought.)

In the next entries, I’ll discuss how and why the importance of Williams and Gopen’s discovery of the stress position is almost invariably missed by writing authorities. Resistance to exploiting the stress position will be seen rooted in a misguided attachment to the pragmatics of talk. We will also see that clear writing’s difference from talk has implications for … you guessed it, the comma. It supplies the last big piece to the comma puzzle.

Monday, October 7, 2013

Writers should exploit all punctuation marks: Reflections on misguided campaigns to reduce punctuation types


Omissive punctuation practices on Twitter convince some observers the apostrophe is superfluous, but a recent essay in New Republic news magazine dismissed the rumors of imminent apostrophe extinction. The author, however, wasn’t exactly happy about the apostrophe’s endurance, cautioning only that leaving it out will continue to “look funny” in formal writing. 

Considering the absence of consensus about which to exterminate, the impulse to kill some disliked punctuation is surprisingly strong. George Orwell thought the semicolon unnecessary and resolved to avoid it; some writers demand abolition of the dash; competent legal writers have opposed hyphenation of many compound adjectives, claiming they’re unsightly and often unnecessary; it’s been claimed that the comma was invented or perpetuated because publishers benefit from their supposedly unnecessary consumption of space; and I’ve condemned the virgule.

This false economy of punctuation types isn’t rational, since an abundance of types for marking syntactic distinctions means greater ease for readers. We have few punctuation types not because of the uselessness of marking additional syntactic distinctions but because of the difficulties of socially coordinating on a new punctuation type, which must be commonly understood and highly practiced. Contrived punctuation doesn’t stick: it requires too great an adoption rate before it gathers momentum. Emoticons (like the smiley) may seem an exception, but they prove the rule: they augment lexicon rather than representing syntax. Lexicon accrues more rapidly than punctuation types not only because we need many more semantic distinctions but also because we more readily learn the meaning of new semantic than syntactic signs. (Acquiring words is in the genes, but writing and its punctuation are parts of culture.)

Why do some writers wish for fewer types of punctuation? One reason is that overuse and misuse often turn them against the whole type. I formed a prejudice against the virgule (/) when enduring an employer who expressed any conjoined or disjoined legal claims with a weaseling and/or. Exposure to some bad freestyle blogging incites people against the dash, and the irritating misuse of the apostrophe to create plurals of names could be enough to alienate some writers.

Another source of animus against punctuation variety is that writers often don’t understand how punctuation helps readers. On discovering that they can understand text without a certain punctuation type, they conclude that it’s unnecessary (the main argument against the apostrophe in the New Republic piece), but punctuation serves primarily to enhance cognitive fluency, not to render text intelligible or disambiguate expressions.

Finally, pedagogy’s emphasis on signaling literacy and competence through correct grammar and mechanics leads some writers to view punctuation marks as occasions for error rather than as promoters of cognitive ease. Fewer distinctions mean less embarrassment.

Using all the available punctuation marks is part of exploiting the full expressive power of written language. But keep in mind what does not follow: if variety (in punctuation types) is a spice of life, heaviness (of punctuation tokens) is a drag.

Monday, September 2, 2013

Comma usage in the context of construal-level theory


Introduction

Commas serve the following functions, in order of their importance for legal writing:

1. Increasing cognitive fluency
2. Inducing far-mode (as defined in construal-level theory)
3. Disambiguating expressions
4. Signaling competence

No one else seems to have applied construal-level theory to comma usage, and while writing authorities pay attention to the other three, the less important are typically emphasized over the more important.

Recognized comma functions

The signaling of competence includes avoiding grammatical errors that lower a lawyer’s credibility by making him look uneducated. Although sometimes emphasized even for legal writing, the importance of signaling competence is minimal because a judge is unlikely to notice the comma errors that infect lawyerly writing and lawyers are unlikely to commit gross errors, such as placing a single comma between subject and its verb or omitting a comma after a long introductory clause. Signaling might be the reason most people study punctuation mechanics, but most legal writers would do better to ignore signaling considerations when punctuating.

Disambiguation is the most emphasized function in writing advice for legal writers, and it probably is the most important function for transactional drafting. But comma usage only rarely is necessary for disambiguation, and the importance for transactional work arises from the huge potential cost of a single error. Some authorities may regale us with the legal catastrophes due to a single comma error, but in brief writing, context will usually make the distinction clear. 

There are really only two scenarios accounting for the bulk of the cases where the comma disambiguates: distinguishing restrictive from descriptive clauses and phrases and setting off a modifying phrase at a sentence’s end when the word it modifies is nonadjacent. Neither is usually truly ambiguous when you consider context. The primary role of context in drawing the restrictive-descriptive distinction can be highlighted by orthography’s not distinguishing between these types of modifiers when they occur before the word modified. In the sentence, “I love all the beautiful Russian girls,”  you can’t tell from the bare sentence whether the writer means “Russian girls, who are beautiful” or “Russian girls who are beautiful.” (HT to commenter harassmenko.) Yet writers don’t shrink from using the grammatically ambiguous expression "beautiful Russian girls." The need for setting off terminal modifiers of distant terms also rarely arises. When it does, the expressions are seldom truly ambiguous. An example is “Prosecutor Howes bribed inmate witnesses to appear, by illegally dispersing witness-voucher funds,” where the by clause modifies “to appear,” not “bribed”: nobody thinks the witnesses appeared by bribing, although that’s what the words state without the comma before by.

Rather than creating real ambiguity, the technical ambiguity instead detracts from fluency.

Increasing the matter’s cognitive fluency is really the strongest reason for good comma usage. Oxford Comma argues cogently that the importance of punctuation for fluency can be seen from punctuation other than the comma—in particular, spaces between words—because all punctuation functions for fluency. If you delete the spaces between words, it’s still quite possible, with more effort, to read it correctly. But cognitive fluency suffers greatly. The same is true, if less obviously, if you delete all commas in long sentences. Overlooking the effect of comma usage on fluency probably explains the over-statements on the comma’s disambiguation function. The comma's effect on fluency is underestimated because the comma’s effects are complex. In fact, the most salient effect of commas is that they slow readers down, a sacrifice of fluency. Too many commas as well as too few make writing unnecessarily disfluent.

Comma use to induce abstract construal

In addition to these usual functions of the comma, another is unrecognized: activating an abstract construal level (or far mode). (Construal-level theory is treated in Construal-level theory: Matching linguistic register to the case's granularity and in its series.) In legal writing and other writing intended to influence opinion about serious matters, it’s desirable to induce the reader to think more deeply rather than focus on the superficial. Since writing is largely a near-mode activity, skill in writing requires overcoming the tendency to induce the same mental set in the reader. Consider again the omission of spaces between words, as in this example (used for other purposes in Oxford Comma):

ofcourseitispossibletounderstandwhatismeantwithoutpunctuationitisntobligatoryinthatsensehoweveritisclearlyhelpfultoreaderstopunctuate

In decoding this string, you’re forced to read in near-mode, one word at a time. Spaces group letters into words; commas group words into meaningful segments based on principles of grammar, which describe how we aggregate words in comprehending sentences. Commas, like spaces, help the reader parse the sentence into comprehensible chunks, contributing not only to fluency but also to an abstract view of the subject matter. Reading in a more molar way by focusing on groups of words activates far-mode.

The prediction, based on construal-level theory, that good comma usage not only improves cognitive fluency but also induces far-mode can be tested against writers’ intuitions about comma usage. Test cases occur where comma usage disregards grammatical structure yet is more fluent. The philosopher Tyler Burge (Origins of Objectivity) is an exceptionally lucid writer, but an over-punctuation quirk in his comma usage breaks syntactic structure, although it increases fluency:

An example of empirical representation that is itself perception is a perception of, and as of, a moving silver sphere.

Burge commits the false-interjection error, but some excellent writers will agree with Burge’s version: it is more cognitively fluent than without the commas. This school of thought, ably defended in Oxford Comma, argues for a greater role for intuition in comma usage than my prescription affords. The intuition is based on cognitive fluency. Although the expression set off by commas isn’t an interjection, the sentence is easier to understand if the reader treats it as an interjection. The meaning is distorted because the punctuation treats “perception as of” as incidental compared to “perception of,” impeding a correct understanding of “perception as of,” which is grammatically and semantically coordinate to “perception of.” (If it's not semantically coordinate, the writer should use a noncoordinate grammatical form.)  

Conclusion

Intuitive punctuation has its distinguished advocates, such as Richard A. Posner, who advises legal writers to punctuate pragmatically. Construal-level theory supports the counter-argument for syntactic punctuation.