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 foregoing 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 acknowledgment 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. (T.D. Wilson, & N. Brekke (1994). "Mental contamination and mental correction: Unwanted influences on judgments and evaluations." Psychological Bulletin, 116, 117-142.) 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 observation that a plain-writing associate has reason to 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,"

For revised view, "The celebration of informality and the unsettled status of contractions."

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 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 nonrestrictive modifiers, which heavy punctuation sets off by commas and light punctuation omits, so that with light punctuation, many nonrestrictive 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 supplies, lawyers usually use light punctuation. Distinguishing restrictive and nonrestrictive 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 nonrestrictive, 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 nonrestrictive 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 your continued existence depends on it, you raise every barely tenable issue. What choice do you 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 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 good 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: 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 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, uneuphonious writing. The weights that the writer should place on Clarity or against Concision and Euphony depend on the intended readers' motivation. An audience's motivation remains important despite its captivity, 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-flown 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 doesn't fully grasp the relevant law's contours. 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.