Thursday, October 2, 2008


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.

No comments:

Post a Comment