The that – which rule: Cure or cause of uncertain meaning

One topic in social psychology concerns behavior reactions when strongly held irrational expectations are disconfirmed; the beliefs may paradoxically strengthen. Remarkably, rules of grammar—such as our topic, the that – which rule—can be the subjects of these strong beliefs. Attorneys sometimes worry that violating one of these imaginary rules of grammar will prejudice judges against them, but believers—as we'll call those who contend the that – which rule governs grammar or usage—don't readily notice disconfirming evidence, and a believing judge won't notice yours. The proof is that when confronted with disconfirmation, believers express shock—not at their own credulity but at the enormity committed upon the English language.

Legal-writing authority Wayne Schiess, I was surprised to learn, strongly upholds the that – which rule, forbidding the use of which without a preceding comma to start a relative clause. (See http://tinyurl.com/yamenoc and http://tinyurl.com/ycz7hvk.) A reader brought Wayne's attention to the violation of this supposed grammar rule in Uniform Commercial Code section 2 – 714:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2 – 607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.

Wayne's informant stared at UCC, § 2 – 714, most of the day, but he apparently never considered that his discovery controverted the supposed rule. Wayne agreed with his reader about the supposed which error; that should replace which, Wayne instructed, and with Wayne's help, I understand what drives this usage convention. When which appears without preceding comma, believers feel uncertain about the writer's intent, the uncertainty arising from English grammar's reliance on the comma to distinguish nonrestrictive clauses, hence on the omission of a comma to distinguish restrictive clauses. Since it's inherently harder to avoid omission errors than commission errors, the believer wants the added security afforded by confirming the comma's omission.

The rule provides the reader with greater confidence that the author intended a restrictive clause and didn't carelessly omit a comma, but the reader is unlikely to notice and question your meaning unless you err. Believers (probably a small minority of legal readers) derive a sense of security from authorial obedience to the that – which rule only when they are made insecure by deliberately applying the misguided rule.

The curse of excessive citation

Brief-writers' faulty citation practice betrays their failure to subordinate the entire brief to persuasion. Many legal propositions asserted will be truisms or otherwise uncontested, as a 19^th-century California Supreme Court recognized when it wrote, "No citation of authorities is required to show that a will is to be construed according to the intention of the testator." (See In re Estate of Stewart (1887) 74 Cal. 98.) The introduction should surprise most brief writers, ruled by today's norm to cite wherever possible.

Brief writers mimic judicial opinions by citing comprehensively; but judges understand that briefs and opinions serve different purposes, and judges aren't pleased with brief writers. In one judge's account, "A lawyer should include as few [citations] as practical…" A study of appellate judges revealed they believed that lawyers should restrict presentations of authority to cases useful to the judges, a standard they claimed lawyers "by any measure" failed to meet. Judge Ruggero J. Aldisert recommended that brief writers "Use authorities sparingly and only to the extent necessary to support a well-thought-out theory of your case." (All quotes from B. Garner, The Winning Brief (1999) at p. 131.) Judges aren't experts on their own persuasion, but here, the judges advocate citing cases only to prove points in contention for good reason: the practice avoids miscue by informing the court only of what's relevant.

Even if lawyers weren't often confused about the distinct properties of a brief compared to a judicial opinion, the amount of time lawyers spend reading opinions would distort their perceptions. When a brief writer looks at a legal proposition unaccompanied by citation, it looks unfinished, but the writer should suppress this misperception.

Lawyers are also subject to the much-studied cognitive illusion of overestimating the probability of conjunctive statements. (See http://tinyurl.com/ycdqdbm.) A table of authorities with thirty-five entries proclaims that the lawyer's argument succeeds only if he correctly applied that many legal propositions. A table of authorities containing seven authorities suggests that 20% as many tests establish the argument's soundness. Assuming the writer provided authority for each contention, the brief with seven authorities is logically more secure, although many experimental subjects naively surmise that satisfying 35 conjoined claims is easier than satisfying seven. The conjunction fallacy encourages more citations, but an uncluttered brief with a compact table of authorities better persuades.

The origin of verbosity in law-school exams

Perhaps understanding how writing a law-school exam differs from real writing can help students both write the exams and minimize the damage mechanical scoring inflicts, as many lawyers never lose the verbose style law-school exams instill. By law-school exams, I mean the open-ended essay questions that require the student to analyze certain facts by applying classroom law. The professor scores these questions semi-objectively by adding points for answer items matching the grading template.

The greatest legal-writing virtue, Concision, involves knowing what to leave out, but the fundamental rule for passing a law-school exam is to leave nothing implied because, with semi-objective scoring, the grader doesn't infer points. Preparing for exams that strictly penalize gaps improves the reasoning of the weaker analysts, but it harms the Concision of the stronger writers, who have begun to distinguish the implied from the omitted. The fault isn't the nature of the exam questions, the staple of legal analysis, but grading that's too objective, too fine grained, too compulsive in fairness. Why would being compelled to write to this standard, primarily in the first year, cause lasting damage to the aspiring lawyer's expressive ability? Assuming students don't conclude that the absolute prohibition on subtlety governing law-school exams defines legal writing—but who's telling them otherwise—isn't writing law-school exams just another kind of writing, and can't a writer learn to adapt flexibly to write to differing standards?

The objective foisted on the law student differs from the aim of any other kind of writing; yet, it's similar enough to teach interfering habits. A writer ordinarily seeks effect in the reader, whether to persuade, inform, or entertain, but the exam writer is indifferent to his exam answers' success as writing when scoring points at the sub-sub-issue level according to a grader's template. Writing to template rather than for effect, particularly during intellectually formative years, encourages an excessively objective frame of reference and argument aimed at notional proof rather than persuasion, forming a writer obsessed with capturing every detail, not with omitting the irrelevant, uninformative, or unpersuasive.

Judges aren’t experts on their own persuasion

Plain-writing advocates sometimes lose their nerve in opposing ineffectual traditionalism. The timing of the panic attacks is a clue to a deeper temptation besetting brief writers; these plain writers hesitate in recommending the same practices. Advising that hanging prepositions, split infinitives, and contractions aren't flaws per se, they advise caution in enjoying this liberality: you should adapt your writing to your audience. If adapting to your audience means writing the way you anticipate the judge endorses, then these adaptations reduce your persuasiveness to what the judge would attain as an advocate.


The cautious plain writers don't explain their admonition's specificity. Abandoning various traditional verbal forms called legalese is a big part of a brief writer's early progress. Why such concern that a contraction will prejudice the court and no apprehension that the absence of a "Comes now" in a pleading or the presence of approximate dates in a facts' statement will offend the court's expectations? A commonality distinguishing the three grammar/style myths—hanging prepositions, split infinitives, and contractions—lies in their being longstanding "disputed issues" of middlebrow culture. They are also myths that have been almost entirely demythologized. Believers on the wrong side of a losing myth are often opinionated, and everyone has had at least one regrettable confrontation with a grammar fundamentalist; but whether the judge approves of your grammar standards doesn't determine the effectiveness of your practices. Judges aren't experts on persuasion, least their own.

The judge's pleasure tempts lawyers. It tempts trial attorneys, such as the inexperienced who become obsequious in the courtroom, but the parallel temptation for brief writers is more subtly expressed, as writing permits less unctuousness and more anxious conformism. Both the unctuous trial attorney and the overconforming brief writer aim to please because of unconfidence in their ability to persuade.

Thinking outside the verb

English grammar doesn't prohibit ending a sentence with a preposition, but unless the sentence is very short, the practice is usually poor style. The guideline follows as corollary to an overarching principle of English style: the sentence's end position should be exploited to convey new information, a function it performs with unique effectiveness. According to some critics, manipulating word order is the skill today's writing instruction for professionals most neglects; debunking the myth that the hanging preposition is ungrammatical endears these constructions to writers unmindful of word order.

Wayne Schiess (http://tinyurl.com/yab9ddj) gives an example of a sentence that should end in a preposition; compared to the stilted and verbose Sentence 1:

A lawyer attending one of my seminars offered a great suggestion of which I had never thought,

Sentence 2 is more natural and concise:

A lawyer attending one of my seminars offered a great suggestion that I had never thought of.

Has Wayne demonstrated that effective style permits commonly ending sentences with a preposition? No, the writer can avoid the hanging preposition's limpness, sound natural, and be more concise by thinking outside the verb, as in Sentence 3:

A lawyer attending one of my seminars offered a great suggestion I had never considered.

Developing legal theory in routine briefs

Conventional wisdom holds that only difficult or esoteric cases merit briefs which formally develop the law. The routine case, on this view, affords at most the opportunity to adjust the law to facts. Contrary to the conventional wisdom, routine briefs, even when the issues are procedural, often become more persuasive by arguing for original legal conclusions that address the dispute's essence. Lawyers hesitate to develop the law formally in routine cases because they anticipate that the court may reject the original legal analysis and imperil an otherwise solid case, but their objection overstates the difficulties in predicting judicial acceptance of the brief-writer's insights.

Legal insights are apt to clarify a routine procedural case when the facts relevant to the appeal are unusual, causing the relevant decisional law's underelaboration; a routine case can present unusual procedural facts when procedural posture makes appeal unlikely. In the following example of small-scale formal-law development, the summary judgment appealed was unopposed below, and a party shows unusual practical irrationality when it abstains below despite caring enough to appeal. Because of the dearth of case law on unopposed summary-judgment motions, no crisp holdings address what the appellant can argue after failing to file an opposition. I briefed my distinction between attack and rebuttal to arrive at the governing principles:

A defendant's prima facie case, when unopposed, can be attacked but not rebutted on appeal. Rebutting the prima facie case means asserting contrary facts; attacking the prima facie case means undermining the technical adequacy of the declarations, the substantive relevance of their content, or the sufficiency of the undisputed facts.

A distinction clearer than the unelaborated case law provides cleanly applies to the facts:

G argues that the "credibility exception"—which prohibits challenges to undisputed facts based on whether the court should believe the witness's declaration—is invalid, and abrogating the credibility exception, G says, would undermine the declarations supporting summary judgment, since alleged inconsistencies in the Ss' deposition and trial testimony would establish their evidence is incompetent. Disputing the undisputed facts with opposing evidence is rebuttal, not attack. Even without the credibility exception's prohibition barring G from creating disputed facts from mere credibility challenges, G would not have attacked Ss' prima facie case; he would merely have tried to rebut it.

Responding to Buckshot Briefs

Issue proliferation goes virulent to become buckshot briefing when the number of issues compels inadequate development of each. The proliferator of issues thinks he increases his chances of prevailing because he naively disregards the dilution of stronger arguments. The proliferator knows that if he prevails, it will probably be based on the arguments he knows are stronger, but he takes the attitude endemic among lawyers that risk is eliminable. The buckshot briefer, in contrast, knows he has little chance of prevailing and hopes to strike it rich by luck. The buckshot briefer typically can't identify his strongest arguments, since none are developed adequately.

A lawyer, as a rule, will file a buckshot brief only when two conditions are satisfied: he is prosecuting or defending a weak case, and he is unable to analyze the law and facts of the case competently. If the lawyer is defending a strong case, the benefits of developing the strongest arguments are manifest, and the buckshot case will rarely tempt. But even if the case is inherently weak, still the buckshot case is a bad strategy: the lawyer can do better by relying on the strongest arguments, however weak. Judges assuredly know these truisms, and the buckshot briefer will be subject to judicial disdain, to complicate his disputational debility.

The number of buckshot briefs submitted suggests the practice must carry some advantages. One advantage of the buckshot brief is it allows the briefer to offload his research responsibilities to opponent. Instead of researching the arguments to discard those that aren't supportable, the buckshot briefer includes any impressionistic argument and lets his opponent sort out the meritorious. This is the unavoidable burden of responding to a buckshot brief.

Filing a buckshot brief also burdens opponent with conceiving how to organize a coherent response to the disjointed submission. If he succeeds in enticing his opponent to oppose his buckshot brief with a buckshot response, the buckshot briefer will have leveled the field. A lawyer cursed with responding to a buckshot brief must impose a simplifying structure on the buckshot briefer's meanderings. He should structure the response to bring out the buckshot character of the brief without expressly having to dwell on it; the response should expose the implausible validity of the buckshot brief's simultaneous contentions. In responding to a recent buckshot brief, I introduced my structuring of the briefer's arguments this way:

G presents a buckshot case rhetorically emphasizing his right to equal protection of the law. He covers all bases: the court should have granted the continuance; failing granting the continuance, the judge should have submitted to G's peremptory challenge; and failing to prevail on his jurisdictional challenge to the court, G should have prevailed on the merits.

When possible, the best organization of arguments targets common assumptions of the buckshot arguments, but often arguments aren't merely presented in buckshot fashion; they really are disjointed. Deal with disjointed arguments by organizing the response around the soundest arguments. The responder shouldn't fall to the temptation of avoiding the strongest arguments because the buckshot briefer doesn't emphasize them.

The colon: When the explanation is more important than what’s explained

Each punctuation mark serves a core function, and usage should follow the core function whenever the rules governing that function are applicable. Disputed Issues has considered the core functions of several punctuation marks: The comma sets off nonrestrictive elements; the semicolon neutrally connects independent clauses; and the dash emphasizes matter tangential in its immediate context. Following the core functions means eschewing rules unrelated to the core function unless the core function is unrelated to the construction. To take the comma, usage guides sometimes state the rule that a comma doesn't set off an adverbial clause at the end of a sentence, but the restrictive - nonrestrictive distinction the writer should apply eviscerates the rule.
The core function is the main function for ordinary discursive text. The colon has a variety of uses, such as exemplification by lists, but the central discursive use of the colon is to substitute for a word like because to create a clause more central than the independent clause to which it would be subordinated. From the opposite end of the grammatical telescope, the colon demotes the independent clause to a parenthetical role.
Here's an example:

Density is audience relative: the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think.

Grammatically, an adverbial clause could substitute for the clause following the colon:

Density is audience relative because the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think.

The colon serves better than the adverb, since the matter in the because clause is more important than what precedes, which only creates a transition through a more general proposition; the more important propositions shouldn't ordinarily be subordinated to the less important. The clause following the colon becomes independent when the colon is substituted, but this happenstance doesn't affect the colon's usage; a subordinate clause can follow the colon, and the independent clause's significance would remain parenthetical.

The subtle distinction between “that” and “which”

Relative pronouns that and which, usually taken for synonyms, differ subtly in sense; distinguishing their uses improves Clarity. Professor Geoffrey K. Pullum, who seems to have first noticed the difference, challenges the that-which rule, whose proponents assume these pronouns mean exactly the same thing; Pullum observes which is used more for conveying new or indefinite information in the pronoun's relative clause and that for established or definite information, but he reports only a mild statistical trend. (See http://tinyurl.com/yjnhhc7) Pullum's basis for distinguishing that from which contradicts the that-which rule, most widely recommended but designed for copy editors' convenience. The copy-editor's solution uses which to start descriptive clauses, that for restrictive clauses; that's occurrence confirms that the writer intended no comma before the relative clause.

Either the meaning distinction between that and which isn't weighty — Pullum's apparent view — or Pullum has missed the distinction's essence by recognizing a correlate. A more exact way to construe the that-which distinction applies which to parenthetical restrictive clauses, that to nonparenthetical ones. Since usage guides mistakenly equate "nonrestrictive" (or "descriptive") with "parenthetic," the notion of a parenthetic restrictive clause may seem nonsensical, but "parenthetic" and "nonrestrictive" name partly correlated but distinct linguistic properties . Restrictiveness concerns whether the modifier changes the reference class of the term modified; parenthesis concerns whether the information is incidental. Parenthesis admits of degrees; restrictiveness affects comma placement.

When instincts for pronoun choice fail, a writer can find guidance in the parenthesis test. Parentheses (the punctuation marks), like dashes, aren't confined to syntactic units. To apply this test, enclose the restrictive relative clause in parentheses. If the resulting sentence makes sense, then which is your choice, despite the absence of a comma. Here's an example of which being used restrictively but parenthetically.

An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive which yielded no offsetting gain for the extant inhabitants.

To test, rewrite as:

An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive (that/which yielded no offsetting gain for the extant inhabitants).

Since enclosing the relative clause in parentheses isn't illogical, which is the better relative pronoun. The information the clause conveys is marginal — figures as a mere qualification — even though the clause is restrictive.

The Forgotten Topic Sentence

Lawyers seldom design topic sentences deliberately; yet, explicit initial topic sentences demonstrably improve comprehension of difficult material through the cognitive mechanism of semantic priming, whereby concepts become more accessible after being activated when the reader entertains related concepts. Instead of using topic sentences, lawyers often avoid writing them by using trivial statements of dates and case names as substitutes (see http://tinyurl.com/rx3bth), since composing and revising topic sentences seems dreary work. (See, for example, http://tinyurl.com/qw2kzl.)

Most of the discussion of topic sentences — which occurs in the primary-education literature and in the deliberations of teachers of freshman composition — exaggerates the generality of topic-sentence usage. Without the aid of research, educators have long extolled the topic sentence as prerequisite for a proper paragraph. "Language Arts" instruction in the early grades goes further than recommending a topic sentence for every paragraph, calling for a "summary sentence" at each paragraph's end.

Students inevitably notice that, except in textbooks, paragraphs aren't nearly so regular, including paragraphs constructed by the best writers. Even when paragraphs contain strong topic sentences, some serve better at the paragraph's conclusion or, preceded by transitional sentences, toward the paragraph's middle. Students conclude that their searches for topic sentences in English classes serve as an exercise rather than a tool for paragraph construction; that teachers don't criticize the students' schoolday paragraphs for lacking topic sentences reinforces this conclusion. Like any exercise, the construction of topic sentences became a dreary business, and going beyond performing such exercises becomes a mark of the students' sophistication, of their adulthood as writers.

Teaching students a distorted view of paragraph construction is bound to cause disillusionment; so, writers must fashion a more nuanced view of topic-sentence usage. The distortion became apparent when the education world was rocked by Braddock's 1974 study, indicating that initial topic sentences rarely occur in the paragraphs of professional writers. Later research qualified Braddock's findings by showing that topic-sentence usage among professional writers differs with the kind of writing. Researchers found that initial sentences vary in their closeness to the educators' idealization and are classifiable into two broad types: natural topic sentences and ideal topic sentences. Natural topic sentences lack some of the characteristics of classic topics; they serve as point sentences instead of tertiary thesis statements. Ideal topic sentences are those still taught in the schools; each states a claim supported by the rest of the paragraph. Ideal topic sentences grow more useful with the material's difficulty.

An ideal topic sentence doesn't best serve every paragraph. Sometimes an explicit topic sentence will be too heavy-handed if a measure of subtlety is called for; sometimes a paragraph will already be so cohesive that inserting an ideal topic sentence detracts from the paragraph's effectiveness; sometimes a topic is better placed somewhere besides the initial sentence. Despite their lack of universal application, topic sentences are particularly important in writing legal briefs, where unnecessary subtlety is misplaced. Using ideal topic sentences sharpens and polishes a brief dealing with complicated substantive law. On matters where the judge can be presumed knowledgeable, natural topic sentences may avoid the appearance of condescension, but natural topic sentences still require revision — often, reorganization of the sentences — so they correspond to their paragraph's content.

Overzealous Concision: Density

This article under its subhead "Embrace prose and avoid terse [read, dense] writing" describes what I mean by "density":

This piece of advice is a reaction against the Bourbaki style ... [of explaining] as little as possible in order to give the tightest presentation possible. ... [I]t is also very hard to read ... an altogether unpleasant experience unless you already know the subject matter and just want to review, not really learn a new subject. ¶ ... Explain ideas fully and clearly. ... [D]o not shy from writing more in order to explain more.

Writing more to explain more is advice unlikely to help a lawyer, who is prolix more often than dense. Writing can be at once prolix and dense, but dense writers usually strive for expository elegance, like the Bourbakis in math. That inverse relationship between prolixity and density — only a trend — shouldn't obscure the different causes of the two mistakes. Nor should the observation that dense writing uses too few words and prolix writing too many. The prolix writer overexplains and the dense writer underexplains, but each is a symptom of a different kind of problem, not the same problem or the opposite one.

Prolixity is actually related to redundancy: prolixity amounts to partial redundancy. A redundant expression repeats identical information; prolix verbiage adds what is practically irrelevant, leaving the reader with nearly identical information. The redundant writer is blind to the repetition, as the prolix writer is to the near repetition. Prolixity comes from a failure of linguistic insight.

Density comes neither from failed linguistic insight nor, of course, its overabundance. Rather, it involves failed psychological insight, in that the dense writer doesn't take the reader's perspective. Density is audience relative: the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think. For an audience of experts, a writer will forgo defining some technical terms, but explanations that organize and activate relevant knowledge help every reader.

(See also related entry Misguided Concision: Terseness.)

Unique style: expressive or substantive

Often in discussions about writing excellence, the point is made that the best writers have a unique style. Little is said to describe the contours of this style. Style has been the subject of previous entries, which define styles as tradeoff patterns among writing Virtues, but the unique styles don't mean tradeoffs skilled writers purposefully modify. "Unique style" refers to something else, but what?

Some treatments, sporting a touch of New Ageism, call this unique style the writer's "voice." These authors promptly add that voice identifies a writer like fingerprints identify ordinary persons. So is it like a voice or like a fingerprint? They're not the same. Only a universal truth about fingerprints, the absolute uniqueness of each, lends them the least interest to most of us. We usually don't even bother to form an opinion about whether one's fingerprint is attractive, more-than-usually unique, or in other manner worthy. Not so with voice. While no aspirant lands a job because of the aesthetics of his fingerprint, the aural media demand vocal qualities, innate and trained. Some voices are more attractive than others, and their attractiveness is independent of the utterance's content, the assessment part objective, part subjective.

Is a writer's unique style a voice or a fingerprint? Surely if this unique style exists, it resembles voice. Unlike a fingerprint, it obtrudes itself; we can't avoid the writer's style. If in contradiction, unique style turns out to be some subtle, technical variance, then we may avoid noticing it — hardly surprising, as it becomes irrelevant. Rather than being like voice, style would have the uniqueness of handwriting in a future civilization where none use this skill.

To the contrary, style obviously matters, yet seems impossible to define in a way keeping the supposed unique and involuntary character. Unique style is supposed to be an expressive quality that becomes more pronounced as the writer skilled. If unique writing style existed, the best writers would suffer scorn for freakishness, not only win acclaim for uniqueness. Any distinctive "voice" can annoy, will annoy someone. Yet, we find no literary critics who simply despise Shakespeare. Shakespeare's distinctiveness, we can conclude, doesn't derive from a unique writing style.

Opposed to these expressive accounts of unique style, an author's unique "style" should be conceived as intellectual style, not anything inhering in sentence or paragraph composition. Writers come to identify their intellectual strengths and learn to exploit them. When a writer settles on a style, he adopts a set of approaches to intellectual (or literary) problems.

Misguided Concision: Terseness

Concision is the supreme writing Virtue, but that doesn't mean its pursuit is never misguided or overzealous. Terseness, today's topic, is the misguided variant of false Concision; density, a future topic, is the overzealous variant.

I take the term "terse" from Wayne Schiess (http://tinyurl.com/lsfkbm) to describe misguided Concision because the example he supplies is paradigmatic, and the term evocative, despite the usage being nonstandard. The sentence Wayne describes as terse is: "One of the most prevalent defenses at trial is compliance with [Federal Motor Vehicle Safety Standards]." To display the sentence's "terse and awkward" character, Wayne points out that the skeletal sentence is "The defense is compliance." While the standard senses of "terse" are polished concision and laconic brusqueness, Wayne's meaning accords with etymology: rubbed away. A sentence like this impresses as having rubbed away too much.

Wayne rewrites the sentence, "One of the most prevalent defenses at trial is that the vehicle complies with the Federal Motor Vehicle Safety Standards," but why is this improvement — how does more Concision become outright error? If you're like me, your first thoughts will go to Euphony because of the sentence's "awkwardness," but terseness offends against Euphony only secondarily, the awkwardness rooted in a lack of Clarity. Consider that "the defense was offense" isn't cacophonous — clichés usually are Euphonious — but when "defense" can equate with "offense," both terms denote actions, such as plays in a basketball game. A legal defense isn't an action but something alleged, a proposition, and we express propositions with that clauses. You cannot coherently equate a proposition, a legal defense, with an act of compliance. "The defense is compliance" is formally incoherent, expressing a category error.

The error is similar in origin to excessive passive-voice usage in both errors' coming from a writer stuck in a point of view, instead of orienting to the reader's. Terseness comes primarily from applying the telegraphic speech involved in thinking to the activity of writing, but idiom too can dull writers' sensitivity to terse writing's incoherence. We commit category errors without embarrassment when idiom sanctifies them, but Wayne's correction, not the terse statement he corrected, agrees with both logic and legal idiom. The "terse and awkward" sentence is that way because it is neither coherent nor idiomatic.

(Related entry — Overzealous Concision: Density.)

The epistemology of passive and active voice

Much editing consists of changing passive to active, but — if active voice is more direct, simple, and natural, as often claimed — why does the untutored writer naturally use the passive? Understanding the reason a tendency exists is part of controlling it; understanding helps discount or modify our writing instincts, but I've seen no explanations of the passive voice's pervasiveness in much bad writing.

Untutored writers overuse the passive voice because the passive word order corresponds to the events' order in knowledge acquisition. Temporal beings, we are stuck in the present: only present events impinge on us directly. From our present perceptions we mentally reconstruct the past and project the future. When we rely on memory, the rememberings pertaining to the past occur in the present. From memory traces in the present, we figure out what happened in the past, whether we accomplish this reconstruction consciously or unconsciously.

The passive voice, which starts by positing current perception, mirrors our path to knowledge. To transform the passive to active, we must carry our starting point in working memory, instead of writing our thoughts as they occur. Active voice isn't more direct, not when we are reporting our thought processes leading to a conclusion, and in documents concerned with the process of discovery, as in reports of scientific experiments, the appropriateness of the passive is recognized by everyone but a few plain-English exponents. A simple example shows how the passive voice mirrors the knowledge-acquisition process:

The Jacksons's house was wrecked.

To acquire this information directly, we look at the house, and this we can do only in the present, despite the vandalism's occurring in the past. From the perception of the wrecked house in the present, we infer that it was wrecked in the past. The natural way to record our thought process is first to posit the house and then the results of our inspection. To make it active, "A vandal wrecked the Jacksons's house," we must start with a distant result of our inference, carrying the starting point in memory.

Now a more complicated legal example (from Bryan Garner's The Winning Brief, Tip 30, Example B, p. 159):

To support a trespass action when the injurious acts complained of were not actually committed by the defendant himself, the person who committed the acts must be either employed, paid, or controlled by the defendant in order to hold him liable.

(Garner rewrites this sentence "For the defendant to be liable in a trespass action when the defendant did not personally commit the acts complained of, the defendant must have employed, paid, or controlled the person who committed the acts.")

The lawyer starts from perception of the complaint's allegations of injurious acts and, by reasoning from the complaint's language, deduces that the defendant didn't commit them. The lawyer then proceeds to look for agency allegations regarding the trespassing person. The natural and direct way to record this analysis starts with the "injurious acts complained of," creating a passive-voice construction.

If the active voice isn't a more direct report of our thoughts, what recommends its use? The basic reason is the passive-voice's verbosity. The flabbiness of passive-voice writing comes not from its lack of directness or naturalness but from an excess of verbiage compared to the more concise active voice. The guideline to favor active over passive quests for Concision.

Pinball wizards and archers: A contrast between trial and appellate work

I offered a pinball analogy for trial work in another blog, where I claimed good trial lawyers must sometimes push to the limit of the court's tolerance, just as a pinball wizard seems to risk tilting. Pinball and trial work share a structure that creates incentives for limit-seeking performance: both measure sanctionability and performance by standards independent of one another. If the pinball player comes close to tilting, his near tilts don't subtract points from his score. Similarly, the judge determines whether a trial lawyer has committed misconduct, whereas the jury ordinarily determines the outcome, and the judge's displeasure doesn't automatically affect the jurors' opinion.

One additional way appellate work differs from trial work, then, is that the same decider evaluates appellate counsel's conduct and the case's strength using overlapping standards. Limit seeking would undermine the appellate counsel's purpose because it would decrease his moral credibility. In contrast to the limit-seeking performance of the trial lawyer, the appellate lawyer's performance is ideal seeking. The appellate lawyer doesn't win by barely avoiding misconduct but by impressing the court with integrity, knowledge, style, and rationality. The appellate lawyer may be likened to an archer; he obtains his goals by approaching an ideal of perfection, not by pressing to the limit of tolerable deviance.

Many typical legal-writing errors come from applying a limit-seeking model to an ideal-seeking task. (Errors in trial work often seem to derive from the reverse confusion, but that isn't our subject.) Emotionalization is often a limit-seeking tactic, as are character attacks on opposing counsel. Even excessive length comes from a limit-seeking mental set. Law and motion attorneys confuse the standards more often than appellate lawyers because law and motion attorneys are often trial attorneys, but inherent confusion about the nature of law-and-motion work complicates matters further. Law-and-motion work may seem to involve two separate deciders, the trial court deciding the motion and the appellate court applying procedural standards. In most courts, the judges have internalized the court hierarchy enough that the appellate court and the trial court aren't roughly independent. In courts insulated from appellate review, limit-seeking performances sometimes pay off.

The semicolon and expectation’s equipoise

(Second and final entry in the semicolon series.)

Freer semicolon usage would help stem the promiscuous spread of artificial connectors, an assault on Concision. It would also contribute to Clarity by simplifying the representation of expectation neutrality, since and and but represent positive and negative expectancy of the following independent clause; but you may wonder when expectations are ever precisely neutral. The most important circumstance where a writer wants to represent the expectation as neutral occurs when the first clause expresses both a positive expectation and a negative expectation; the writer wants to avoid seeming to prejudge which is the stronger.

Oliver Wendell Holmes Jr. used the semicolon with great precision in his famous epigram, where the first clause expressed positive and negative expectations:

We do not inquire what the legislature meant; we ask only what the statute means.

Holmes renounces a purposivist approach to statutory interpretation but intends the implication to elicit surprise, greatest when a correlation obtains neither positively nor negatively. Holmes can create a sense of surprise because the renunciation carries two implications or expectancies: to interpret the text instead of interpreting the legislature's will or to renounce interpretation altogether. Logically, Holmes might have said instead: "We do not inquire what the legislature meant; we ask only what the legislature should have said."

A legal writer who uses semicolons with unusual effectiveness is Judge Richard A. Posner in The Economic Analysis of Law:

Generally, specific performance (ordering the party who breaks his contract to perform, on penalty of being held in contempt of court if he does not) will not be ordered as a remedy for breach of contract; the promisee will have to make do with damages, as suggested in the Holmes dictum quoted earlier.

(The Economic Analysis of Law, p. 117 [reference to Holmes coincidental].)

Here you can see the same pattern as in the quote from Holmes. The policy-of-denying-specific-performance clause activates two opposed expectancies: that another remedy will replace it or, alternatively, that none will; a different remedy or no remedy at all.

The underutilized semicolon

The semicolon, long in decline, may be in renewal, but it remains rare in its central use: replacing a comma and coordinating conjunction to unite two independent clauses. Current pedagogy tells us that the semicolon represents a bigger break than the conjunction and a smaller break than period. Could this account have caused the semicolon's decline, as we increasingly relied on written accounts for rules of mechanics? Can writers really classify the degree of logical connection of clauses into as many as three distinct categories? Most people have a hard enough time with only two. Plain-language exponents of short sentences instruct to break off a sentence when it becomes "too" long. Does anyone expect ordinary people or even skilled writers to divide degree of connection between connected thoughts into three neat, objective compartments? Even if the compartments existed in an objective sense, our mental powers may be too weak to distinguish them.

Guided by finding an interval greater than a comma but less than a period, writers reasonably choose not to apply voluntarily an intermediate standard as ephemeral as clear-and-convincing evidence, a standard so unintuitive people apply it only when serving on a jury under court order. If the semicolon had vitality before people relied so heavily on formal explication, people must have used a different criterion, either in addition to or in place of the intermediate-pause account. The real vitality of the semicolon — the best way to use it — depends on the need for a neutral connector rather than an intermediate pause because to show a connection between ideas facially we rely primarily on two coordinating conjunctions, but and and. But combines logical conjunction with contrariety. When you encounter but, the writer implies that hearing the first clause would ordinarily decrease your expectation of hearing the second. It seems natural to assume equivalence between and and logical conjunction: but stripped of its contrariety. So assumed, and is the generic connector, but the negative-expectation connector, and no positive-expectation connector exists. And may not be quite as positive as but is negative, but and is positive, not generic. Otherwise we would have to choose more carefully between and and but whenever but applies.

The semicolon is the language's neutral connector. Use it to connect ideas directly without implying either positive or negative expectation of what follows.

(Next entry I'll discuss the main circumstance in which expectation neutrality is important.)

The art of exegesis and the demolition of unintelligible arguments

Sometimes a key argument in an opposing brief or a reviewable judicial opinion is largely unintelligible. One way of attacking such an argument is simply to assert its unintelligibility, but what if the court disagrees? A related disadvantage of simple assertion is that even if the entire argument is unintelligible, the parts may not be. When only the parts are intelligible, attorneys are likely to respond to the parts and ignore the unintelligible whole, an approach that doesn't remove the risk that the judge thinks the whole does have some meaning you missed.

When unintelligibility is found, usually the poor reasoning in the attempt at argument causes it. The lawyer responding to such an argument should not pass up the opportunity to demolish the poorly reasoned argument, a more effective response than declaring it unintelligible. Demolishing the argument discredits it and helps prevent its resurrection by improvement, and the judge will be more satisfied to have a sense of understanding the intended argument than merely dismissing it. When the judge's interpretation is overly charitable, you can supplant the judge's interpretation of the argument with a well-reasoned exegesis of an opponent's or lower court's argument .

The following argument comes from a judge's order in a State Bar discipline case where the prosecution is trying to disbar Philip E. Kay for disobedience to court orders. California State Bar cases are an excellent source of examples of terrible writing and even worse logic. The paragraphs I'll quote served to oppose Kay's claim that the State Bar withheld exculpatory evidence relevant to the statute of limitations. The evidence was from testimony in a federal suit on employment issues by a former state bar prosecutor (Konig). Here are the paragraphs:

In general, a prosecutor's opinions and impression of the case are not discoverable under the duty to disclose exculpatory evidence respondents assert that the Konig federal lawsuit contains conclusions of individual prosecutors that is at odds with the State Bar's position in this case, specifically referencing statements that judge Anello was a complaining witness in this case. However, the issue of whether Judge Anello was a complaining witness was not relevant in either the Konig federal or state cases. Moreover, witnesses must testify to facts and not their opinions or conclusions. Likewise, the use of slang is not evidence. Further, it is the opinion of the Office of the Chief Trial Counsel and not individual prosecutors that matters.

Even experts usually may not testify as to questions of law. That is, the opinion of a witness on a question of law is generally incompetent and inadmissable. Likewise, individual prosecutors cannot testify as to their individual opinions and conclusions regarding the law in a matter they were involved in; and respondents have no right to the prosecutors' individual opinions and conclusions. Nor are they relevant.

The bar-court's paragraphs are a mess, as revealed in the transitions, which strive to give the impression of logic while flouting it. Separate arguments are tied together with "however" and "moreover" without demonstrating the corresponding logical relationship between them. Since the paragraphs seem to express no unified argument, the confused argument tempts attorneys to ignore the argument as a whole and respond to each of the separate claims, such as the one claiming Judge Anello's status as a complaining witness wasn't relevant in the cases Kay wants to access. Kay could respond that Judge Anello's status as a complaining witness was relevant in the federal case because the district court stated in its conclusion that Anello was the complaining witness. I don't quarrel with that argument, but it isn't the central point to be made in response. To construct the most effective opposition, one should first figure out what the State Bar is really saying.

Helping the State Bar substitute a coherent meaning for the quoted confusion isn't doing the State Bar a favor. The State Bar applies rules prohibiting use of opinions of individual prosecutors to support conclusions about which opinion is correct, meaning if the State Bar officially characterized Judge Anello as not being a complaining witness, you cannot counterpose the opinion of specific prosecutors as authoritative or as true. The rules the State Bar tries to invoke are analogous to the hearsay rule, which states that second hand statements cannot serve as evidence for their truth. Similarly, the opinions of prosecutors cannot be invoked to prove their truth, but Kay didn't unseal the Konig records to prove that Judge Anello was a complaining witness because prosecutors said he was but to prove facts, such as his role in charging Kay, that implied he was. The same facts are circumstantial evidence that, contrary to what the State Bar claims, it regarded him as a complaining witness. The key to undermining the State Bar Court's argument as a whole is exhibiting its central mistake and analogizing it to a misapplication of the hearsay rule.

Comma Logic: "Parenthetic" versus "Nonrestrictive" Elements

One can never be too clear on the logic of the comma. Common grammar advice seems partly responsible for the confusion. Many guides state a rule that commas should set off parenthetic elements and a separate rule that commas set off nonrestrictive clauses and phrases. Occasionally the guides equate nonrestrictive and parenthetical; commonly, they imply that parenthetic elements are a subset of nonrestrictive elements, but although parenthetic elements and nonrestrictive elements overlap, even seeming to coincide, the distinction expresses different bases for categorization.

Restrictive versus nonrestrictive distinguishes categorically, based on the way a modifier affects the meaning of the term modified, the modified term either restricted in scope or not, but parenthesis means "a remark or passage that departs from the theme of a discourse: digression." (Merriam-Webster's definition 1(b); I exclude 1(a) because it incorporates punctuation, the explanandum.) Parenthesis is a continuous rather than categorical concept, and it describes the pragmatics of usage rather than its semantics. A parenthetic element is parenthetic because it digresses from the writer's main line of thought.

Following these definitions, restrictive parenthetic elements and nonrestrictive nonparenthetic elements are possible. A parenthetic element that is restrictive digresses from the writers thinking yet changes the meaning of the modified phrase. A non-parenthetic non-restrictive element follows the writer's train of thought but changes the meaning of the modified phrase. Nonrestrictive/parenthetic and restrictive/nonparenthetic tend to correspond, but the correlation is only partial.

So what are examples of restrictive elements that are parenthetic?

Forgetful doctors who were uninsured because they neglected to mail their premiums suffered as much as doctors who intentionally stopped their coverage.

Imagine this sentence appears in an article extolling the importance of obtaining insurance. The relative clause departs from the main line concerning objective importance by elaborating on a cause of failing to obtain insurance.

And nonrestrictive elements that aren't parenthetic?

In one case the doctor, who failed to procure medical-malpractice insurance, became indebted for three million dollars when he lost a lawsuit.

The relative clause is more related to the main thought of the article on insurance's importance because without it the insurance theme is absent from the sentence.

Some readers will disagree with the classification; parenthesis as concept is vague because the distinction is partly subjective. The subjectivity of parenthesis combines with the concept's fuzzy boundaries to disqualify parenthesis as a basis for punctuation.

The Essential Outline

Writers create outlines for two main reasons: 1) outlining allows a writer to focus on listing thoughts at the lowest organizational level and on the quasi-inductive creation of categories, and 2) outlining allows a writer to focus on the highest level of organization and on the quasi-deductive elaboration of progressively lower levels. The first reason is only heuristic, and other devices may substitute; the second reason is essential. Lawyers don't usually share nonprofessionals' phobia of outlines, as they've built complex outlines in law school, where creating a personal course outline is part of the study ritual. Yet surprisingly many lawyers don't use outlines for complex appellate briefs, while some rely on outlines too much. Characteristic symptoms reflect insufficient outlining, others, overreliance on outlines, and knowing these consequences provides another perspective for evaluating a ghostwriter.

Headings serve as categories for segregating text, but devising logically exclusive headings usually requires focusing on them with and without the accompanying text. Lacking an outline the writer's ad hoc headings won't be mutually exclusive. Burdened by overlapping headings, legal writers who don't outline repeat content. Repetitiveness is the worst effect of forgoing an outline.

A brief should be organized around precise and evocative headings, which serve as signposts in the document's body and as summary in the table of contents; the second major problem linked to lack of outline is poor relatedness between headings and text. Lower level headings should cohere with the headings above and the text beneath and be parallel to other headings at the same level. A longer brief won't cohere without initial planning and subsequent adjustment, both best accomplished in an outline.

One overuse of outlines treats them as forms: transitions between sections are ignored. When a document sounds like an outline, the author probably seldom actually wrote, only outlined and transposed authoritative paraphrases or quotes. Since we accomplish much of our thinking in trying to express it, the overoutlined brief often underanalyzes.

The last form of overuse of outlines is when the author thinks of the headings exclusively in relation to the outline, not in relation to the text beneath the headings. Such an outline will be organized according to some predigested formal scheme, which doesn't make best use of headings. If a cause of action has three elements, the writer might organize the brief around each of them. He achieves logical tightness and mutual exclusivity in the outline, but he isn't telling the judge anything new. Headings should carry valuable information, not legal formulas the judge already knows. Facts should be woven through the headings, so they tell the judge what's most important in your argument, not what an argument of the kind must perforce accomplish.

These flaws are useful checkpoints, regardless of whether outlining problems caused them, but outlining problems account for their frequency.

Appraising “Strunk and White”

Strunk & White's ("Elements of Style") fiftieth anniversary caught linguist Geoffrey K. Pullum's wrath. (See http://tinyurl.com/dhc2sh) Pullum isn't entirely fair in his criticisms, often because of his distaste for the authors' stating their advice absolutely. Pointing to the literal impossibility of omitting all modifiers, Pullum derides "use active voice" and "write with verbs and nouns, not adjectives and adverbs." Pullum's point is that the literal advice is misguided; qualified advice, vacuous; and admonished advice, incoherent. His criticism reminds of the legal-realist mockeries of the interpretive canons, and the same rebuttal applies: defeasible rules aren't necessarily vacuous or contradictory. Strunk & White understood the active-voice passive-voice distinction and merely mentioned a related distinction between connective verbs and transitive active verbs. Where critics find Strunk & White ignoring its own advice, they could more charitably construe this inconsistency as having a point many critics endorse: style and even grammar rules are at best only guidelines.

Descriptivist linguists act paradoxically when they criticize a recommended rule as "wrong," but the unquestioned acceptance of some of the Strunk & White "rules" has harmed usage. Even Bryan Garner — not to speak of Wayne Schiess — continues to advocate a rule that would deplete the language's expressive power: the that/which linkage to nonrestrictive and restrictive modifiers, a rule announced by Strunk & White. What arouses the somewhat misplaced ire of the book's vehement critics is the misuse to which others have applied it. The work has been transformed from a teaching aid for inexperienced writers into a battering ram of the incompetent against those who have outgrown Strunk & White's strictures. Ascending to administrative, educational, and editorial posts, the mediocre exploit the stark absolutism of the rules understood without the qualifications in the text following. One or another rule may be purveyed as a writing panacea. The recommendation to prefer the concrete to the abstract is turned into a condemnation of abstraction, by persons afflicted with excessively concrete thought. The book's commitment to the attic style may be taken to preclude other styles, rather than as a stage in writers' development.

To objectively assess Strunk & White, we should distinguish the work from its use by epigones. Too simplistic to serve today as general style guide or text, Strunk & White in its succinctness can sometimes help experienced writers re-activate a mental set incorporating its theme of syntactic transparency.

Attractive Fonts for Hard Cases

Lawyers care much about some Facets of document Attractiveness and little about others (See "Effective Writing: The Big Picture" for definitions of the Virtues and their Facets): lawyers who haven't devoted a thought to font selection would never consider submitting a strikeout, which decreases Neatness and affronts a formality. Lawyers don't think about fonts because when designing the appearance of documents lawyers worry instead about breaching formalities. Lawyers dread violating some formality they are unacquainted with, a professionally humiliating experience. To give the profession its due, breaching a formality has consequences worse than filing an Ugly document.

Document aesthetics are most important when your case is weak on the merits. Improving the Attractiveness of a document is one of the few ways to appeal to a judge's emotions; the other is Euphony. With a weak or unpopular case, you desperately need to create favorable associations. Augmenting Euphony means making a difficult turn toward the asiatic style. Fortunately for hard cases, most lawyers can easily augment briefs' Attractiveness, so lacking in aesthetic sensitivity is lawyerly composition.

Most lawyers can improve even Clarity significantly by a simple font change, substituting Century Schoolbook (New Century Schoolbook on Macintosh) for Times New Roman or Times. The remedy for Ugliness involves two font changes to improve Novelty and Pattern by using distinct font families for headings and body text. Choosing compatible combinations calls for some study, thought, or advice. Although you will often read the conventional recommendations to use serif fonts for body text, the data indicate the absence of consistent Clarity differences that depend on complicating the end stroke of letter and numeral.

Here are some striking yet professional combinations of serif body text and sans-serif headings:

Corbel for headings; Constantia for text. (Microsoft fonts: download a trial of Microsoft Publisher in Office 2007, and keep the fonts.)

Century Gothic for headings: Century Schoolbook for text.

And sans-serif body text and serif headings:

Zapf Elliptical (also called Utopia) for headings; Zapf Humanist (Optima) for text. (WordPerfect fonts: similar acquisition techniques apply.)

Serifa for headings; Univers (Zurich) for text. (WordPerfect fonts.)

Grammar and Judges

A reader asked whether I thought judges themselves knew the grammatical and mechanical rules I discussed in the last entry; even if they know, do they care? No, most don't know, and those who do don't care a bit. The importance of punctuation isn't to have the judge give tacit points for good grammar but to allow the judge the greatest understanding of your argument. Proper comma usage aids comprehension by setting off modifiers less directly related to the main message.

Sometimes failure to properly punctuate creates ambiguities. When nonrestrictive adjectival clauses beginning with relative pronouns like who, that, or which aren't set off (or restrictive ones are set off) the meaning the sentence conveys is not only confusing; it's quite wrong. Think about the miners who worked beneath the surface in the last entry and the distinctly different meaning that results from adding a comma. The creation of ambiguities when you wrongly punctuate relative clauses is another reason, besides cognitive ease, that teachers emphasize adjectival clauses.

Adverbial clauses don't create the same ambiguities because the initial words of adverbial clauses, like because, since, where, or when, always have the same grammatical role when they have the same sense: since introduces a restrictive clause in its temporal sense and a nonrestrictive one in its causal sense. At worst, incorrectly punctuating a since clause creates only semantic ambiguity, which the writer failed to enlist punctuation's aid to resolve, not relative-clauses' structural ambiguity.

Incorrectly punctuating adverbial clauses doesn't ordinarily create ambiguity, but it confuses the reader for other reasons. Consider this sentence from the preceding entry:

If someone asks, "Did the miners die, since the employer spent too little on safety" when employer underspending wasn't the reason, the question should elicit denial only of the "since" clause, not the whole statement.

More than a single punctuation error could mar this sentence, but I want to focus on the effect of incorrectly placing a comma after safety and before when. An adverbial clause introduced by when is usually restrictive, as it is above. Inserting a comma after safety causes the reader's brain to try to interpret what precedes when before reading the rest. The effort is misguided because the if clause speaks of the effect of someone's act of asking only on the condition that the employer's underspending wasn't the reason for disaster. A comma before when generalizes the conditional relationship. By triggering the wrong interpretive strategy, the writer risks confusing or at least delaying the reader.

Attorneys must overcome being conditioned in grade school to think of correct usage as a way to impress readers or avoid embarrassment. Law-firm partners will often incompletely extinguish their early conditioning because they aren't pressured to understand briefs under tight deadlines, and they are apt to speculate about whether correct syntax and mechanics "look right" or whether the judge will mistake right for wrong. Judges theorizing about what judges care about make this mistake — one hopes referring to other judges' reactions — as when Justice Scalia suggests avoiding contractions because of a some judges' possible disapproval. Judges lack the time or interest to correct attorneys' grammar. Safer to give judges what they need than what they say judges want.

Logical grammar: Restrictive and descriptive modifiers clarified at last

Part of the answer to why lawyers don't perform various writing tasks correctly is that many don't know how. Hyphenating phrasal adjectives? How many lawyers can identify one? So norms develop that hyphenation doesn't look right. Understanding phrasal adjectives isn't vital, but to know if your ghostwriter punctuates correctly, you must understand the distinction between restrictive and nonrestrictive modifiers. Grammar textbooks emphasize applying the distinction when the modifier is a clause starting with a relative pronoun, such as who, which, or that. Adverbial clauses, starting with words like when, since, because, if, are harder, and their difficulty may be the reason the textbooks apply the distinction to adverbs less often. The rule is the same whether the modifier is adjectival or adverbial: restrictive clauses are not set off by commas, whereas descriptive clauses are. A major exception is that longer initial clauses and phrases are set off, even if restrictive.

I'm going to discuss some of the harder-to-classify adverbial clauses. The pedagogical principle is that the basis for categories becomes clearest at their edges. I don't know that every authority assents to my classification, but if you attend to my logic you will grasp the distinction between restrictive and nonrestrictive (sometimes called descriptive) modifiers, and you can then judge whether your ghostwriter gets it right most of the time.

The test is: does the modifier make the set of objects or actions that satisfy the modified term a proper subset — a subpart — of the set of objects or actions that satisfy the unmodified term?

The miners who worked beneath the surface died in the accident.

An easy adjectival example to start, the unpunctuated clause beginning with who is restrictive. The only miners who died in the accident were the ones who worked beneath the surface; some didn't die.

The miners, who worked beneath the surface, died in the accident.

The same phrase becomes nonrestrictive. You start with miners and don't reduce the number of them who died by another criterion: whether they worked beneath the surface. You are talking about all the miners, not a proper subset, and offering further description of them without limiting the number being considered.

Now let's look at some adverbial clauses, which are harder and will cement the distinction. The first one starts with because.

The miners died because their employer cut spending on safety measures.

The adverbial clause beginning with because modifies died. Does it restrict or merely describe the meaning of died? It restricts it because the statement limits the deaths that make the sentence true to those caused by the employer's cut in safety spending. If the miners died but their deaths had nothing to do with decreased safety spending, the sentence becomes false. Clauses beginning with because aren't usually preceded by commas because they are restrictive adverbial clauses.

Consider an adverb with much the same meaning in one of its senses as because, since. This one is very hard. Take the same sentence, replacing because with since:

The miners died, since their employer cut spending on safety measures.

Although this sense of since means much the same as because, it differs subtly. If the miners died for a different reason, denial of the because sentence speaks truth. If the miners died because the country was at war and the enemy bombed the mines, then the correct answer to "Did the miners die because of withheld safety spending?" is no, but what is the answer to: "Did the miners die, since their employer underspent on safety"? The since clause doesn't state a restriction on the acts of dying that count for the sentence's truth. Merriam Webster's supplies because as a synonym for since but defines the relevant sense as "in view of the fact that," whereas it defines because as "for the reason that." The assertion that the miners died because... imparts the reason for their death and is false if the reason is wrong. The assertion that the miners died since ... asserts a background fact that is a presumption underlying the sentence's utterance. If someone asks "Did the miners die, since the employer spent too little on safety" when employer underspending wasn't the reason, the question should elicit denial only of the since clause, not the whole statement. The relevant miners remain the same set. Since restricts the circumstances in which the sentence is meaningful, but it doesn't restrict the relevant miners' deaths.

One final example. Consider it your final exam. Is an adverbial clause beginning with if restrictive or descriptive?

If the boss had spent more, the miners would still be alive.

Restrictive; although a comma follows the if clause because it starts the sentence, the sentence is true only if the miners' lives depended on the spending.

Now all readers can follow the discussion about punctuation.

Hyphenating compound adjectives: Reconciling legal writing with professional writing practices

Style manuals decree writers must hyphenate most phrasal adjectives when they precede the noun the phrase modifies, but many lawyers don't know the rule; many who know reject it. (See Shannon's comment.) An example of a controversial phrasal adjective occurs at the end of the third paragraph:

requires time-consuming semantic processing.

Some lawyers say the phrase needs no hyphen because time is a noun, and one would never think it modifies processing; but a writer who guesses what "no one" thinks exceeds his expertise. Time may usually be a noun, but in time-consuming, time functions as an adverb. In my example the hyphen avoids a different ambiguity that time is the object of requires: requires time...to consume semantic processing.

Bryan Garner and Wayne Schiess agree that with the standard exceptions phrasal adjectives should be hyphenated, but Sasha Volokh argues for punctuating only as necessary to avoid probable ambiguity, not a hypothetical one. I disagree with the three authorities. Garner and Schiess give insufficient weight to the opinions of some competent legal writers who often omit hyphens, and Garner and Schiess don't identify unneeded punctuation as redundancy. Volokh qualifies the hyphen rule but on the wrong basis. Volokh thinks that the hyphen wastes white space when the adverb can't plausibly be an adjective modifying a subsequent noun, but miscue isn't the only problem with omitting hyphens; the more common problem is delay. Omitting the hyphen delays informing the reader of what the adverb modifies until the reader reaches the noun. Then the reader's brain must engage in time-consuming semantic processing before concluding whether time modifies consuming or a subsequent word. In the example the reader must reach beyond semantic to processing before parsing the phrase.

Against Volokh's commonly encountered position that writers should omit hyphens when miscue is improbable, what allows omitting the hyphen isn't that the adverb can't plausibly be an adjective but that it very plausibly is an adverb, creating a self-contained phrase, such as high-school student. Even a self-contained phrase isn't usually enough to warrant omitting the hyphen. Most self-contained phrases should be hyphenated because the stock meaning won't necessarily be salient for all readers; a high school student could be a college student on drugs. The set of self-contained professional phrases, terms of art, such as summary judgment motion or municipal code violation, are the true exceptions to the phrasal-adjective rule, not only because of audience uniformity. When one of these phrases occurs in a document, repetitions often abound, so once a summary judgment motion features in a case the writer will probably mention it again. Repetition compounds the redundancy of hyphens and adds disproportionate clutter.

Do professional writers who obey the Chicago Manual of Style or similar guides know how to edit law documents better than professional legal writers? The style guides envision writing to a broader audience. Despite some plain-language advocates' exaggeration of the similarities, writing for lawyers sometimes differs from writing for educated nonprofessionals.

Black-letter briefs

The overstatement that incurs courts' distrust doesn't always bespeak inferior writing skills. Legal confusion or misdirection about rules in relation to public policy usually nourishes overstatement and is sometimes its direct cause. Many attorneys mistake a phase of legal argument—applying rules to facts—for the entirety. The resulting lopsided analysis ignores the adjustment of rules to public policy in an integrated legal system, where individual rules have only limited autonomy. Oliver Wendell Holmes Jr., author of the most memorable statement favoring interpreting plain legislative texts, as opposed to legislators' subjective intents—"We do not inquire what the legislature meant; we ask only what the statute means"—did not, like latter-day textualists, reject legislators' broad purposes, only their narrow intents. Holmes describes the decisive role of policy:

The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient to the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. (Holmes, The Common Law 35-36 (1881) [quoted by Aldisert, infra, at p. 4)].

Since rules must be mutually reconcilable, a change in how courts conceive one rule influences how they construe and apply even distant others. Changing a law pulls public policy in its direction and also leaves an altered balance of policy issues to other rules' regulation. The rule-based conception of law leads attorneys to ignore the opposing interests and think about their cases in ways that promote overstatement. If cases were won simply by bringing facts under the accepted rules, then if you were right, you'd be clearly right, as attorneys so often declare, because once the facts are characterized ordinary logic dictates whether they satisfy the rules.

In a to-be-published essay (download) Judicial Declaration of Public Policy, Journal of Appellate Practice & Process, Vol. 10 (forthcoming, Spring 2010) Ruggero J. Aldisert, Senior Judge, Third Circuit Court of Appeals, opines that the majority of federal-court appellate briefs are made useless by their failure to help the court resolve the issues. (Hat tip to Prof. Lawrence B. Solum, Legal Theory Blog.)

Too often, briefs simply recite the various leading cases and attempt to bring the particular dispute within the boundaries of the decisions thought to be controlling. They address too briefly, if at all, the interests implicated in the decision. Such briefs are of little aid to the court. (Aldisert, supra, at p. 16.)

Many cases—particularly in torts, tax law, family law, and constitutional law—aren't resolved by rules alone but require inferences from the relationship between rules and the vying interests viewed through a public-policy lens. Most appellate cases feature conflicting interests, and a brief can persuade only if it discusses them. All relevant "private, social, public, and governmental interests" must be "not only evaluated, but compared, accepted, rejected, tailored, adjusted and, if necessary, subjected to judicial compromise." (Id., at p. 13.) To persuade the court with a comprehensive analysis, the writer must "know not only those facts which bear on direct controversy, but know all the facts and laws that surround." (Justice Brandeis, quoted id., at p. 16.) Broadly understanding the issues' periphery also discourages overstatement and other oversimplification.

My blog Juridical Coherence has started a series on statutory interpretation, including public policy's role. (http://tinyurl.com/d8pos9)