Sunday, March 23, 2008

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.

Saturday, March 15, 2008

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 na├»ve 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.

Thursday, March 13, 2008

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.