Tuesday, October 28, 2008

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 na├»ve 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.

Tuesday, October 14, 2008

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.

Thursday, October 2, 2008

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.