Monday, April 21, 2008


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.

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