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."]