Excessive Stage Setting: Boilerplate and Storytelling

One little-remarked practice that sharply divides appellate lawyers is incorporating extensive stage setting in briefs, including boilerplate procedural law and storylike facts. Excessive stage setting is a problem in all the professions. The right amount of background material depends on the reader's knowledge, the optimal background varying with professional development. This moving target may be one cause of excess: the concision expected of a professional differs from the volume rewarded by teachers. The work product practiced when learning is much different from that demanded as professionalism matures.

Briefs filed in both appellate and trial courts usually include excessive stage setting. For a motion for summary judgment, the judge does not ordinarily want an exegesis of the summary judgment statute. The judge knows the procedural law of summary judgments better than you or your ghostwriter, and to presume to educate the judge on routine procedure is either arrogant or pedantic. Yet, many lawyers habitually include a boilerplate summary of summary judgment procedural law. Similarly, in briefing an appeal of a malicious prosecution case, the Court of Appeal will be uninterested in extensive discussion of those facts in the underlying case unnecessary to resolve either of the cases below.

If excessive stage setting distracts and dilutes, why do so many attorneys do it? The dialectic between training and expected performance partly explains it. Another cause, clients' demands and expectations. The attorney's only drive may be winning the case, but his client has collateral motives. What convinces the judge doesn't necessarily please the client, who often doesn't understand the difference between pursuing victory and expressing indignation. The client's interests are rationally opposed to effective writing insofar as he distrusts the attorney, tempting the client to use personal metrics to weigh the brief's effectiveness and the price's justification, and the client's default measure of the attorney's labor is often length. Some clients urge their entire story's telling, thinking their cases deeply sympathetic, capable of moving judges to assist. The client presses against writing a brief likely to win, and attorneys can find that if they tell the client's story, present numerous arguments, and quote an abundance of law, the client will be gratified, even if the case loses. The motives of litigants are often removed from what law contemplates.

An unusually persuasive brief can overcome a client's objections. Sometimes only with the best can you obtain your client's permission to brief effectively.

Effective Writing: The Big Picture

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One way to assess writing is to break down the general idea of good writing into facets, the writing Virtues, and to analyze the Virtues into their subordinate Facets. I have invoked the writing Virtues repeatedly, and they deserve systematic delineation by facet analysis. (See Hjørland, Facet, Facet Analysis, and Facet-Analytic Paradigm (2008).) Two Virtues apply to the message's meaningful content: the document's words and sentences; two apply to the medium: the sights ink and paper present and the inner speech they represent.

The message-related Virtues are Clarity vs. confusion and Concision vs. prolixity. Clarity's Facets are Precision vs. inexactitude, Thoroughness vs. omission, and Integration vs. pointlessness; Concision's Facets are Succinctness vs. looseness, Organization vs. repetitiveness, and Relevance vs. digressiveness. Attend to their Facets to understand the Virtues. "Clarity" usually denotes Precision, and "Thoroughness" initially seems far removed. Clarity, here, refers to a dimension expressing the amount of contained information, the Precision Facet denoting the fineness of informational grain; Thoroughness, the extent of its sweep; and Integration, the richness of interconnection. Clarity refers to a dimension of the writing’s power, analogous in sense to the physicist's concept: work done per unit of time. Concision, a dimension reflecting the writing's informational efficiency — how much information is conveyed per linguistic sign — is analogous to the physical concept of efficiency, the ratio of the work done to the energy supplied. The Succinctness Facet is the small-scale elimination of verbiage, such as redundancy creates; Organization is avoiding inefficiency due to repetition; Relevance is avoiding overinclusiveness.

Clarity and Concision function in both complementary and conflicting ways. Many writing improvements favorably affect both Clarity and Concision because eliminating verbiage avoids distraction and miscue, improving Clarity mainly by enhancing the Precision Facet. But some features of writing improve one at the expense of the other, creating tradeoffs sometimes easily accepted or rejected, other times presenting purpose-related choices. Extensive background facts improve a brief's Clarity via Thoroughness, but the author digresses at the expense of Concision via Relevance. The best legal-writing resolution of this tradeoff approaches strict Relevance, but other writing, say, a New Yorker essay, benefits from the greater Thoroughness that weakening the Relevance criterion allows. Thus, different writing tasks benefit from modification of style, one with greater weight on Clarity and less on Concision, each subordinate Facet, however, not equally affected. Besides yielding a checklist for evaluating writing, the model also affords a unified vocabulary for describing important differences in writing style, based on the weight applied to the Virtues and their Facets. It even gives the writer a device for modifying style systematically.

Compared to the message-based Virtues, the medium-based Virtues operate more independently, yet still participate in complementary and conflicting relations. Euphony vs. cacophony divides into the Facets Novelty vs. monotony, Rhythm vs. clumsiness, and Smoothness vs. choppiness. Novelty is expressed in stylistic variety, such as the using sentences structured variously. Rhythm includes idiomatic propriety and some devices, such as parallel construction, and Smoothness describes the sense of flow. Euphony concerns how the writing sounds, even if never to be read aloud, since unspoken language's sound still similarly affects us. With the advent of computer-document formatting, the writing's naked look has become significant, elevating the fourth writing Facet to the Virtue Attractiveness vs. ugliness. Novelty vs. monotony appears beneath, its being a general principle of attention allocation, but its opposite, Expectability vs. unnervingness, also appears. The two dimensions of Attractiveness accommodate our taste for moderate novelty and our aversion to both the monotonous and the bizarre, whereas Euphony lacks a similar conflict about degree of novelty because any language's aural limits don't admit novelty's excess. Finally for the Facets of Attractiveness, Neat versus sloppy includes, at the sloppy pole, interlineations and typographical errors.

Euphony, by complementary effect, ordinarily subtly enhances Clarity, but some Euphonious improvements will diminish Clarity, for example, choosing words that sound best despite their vagueness. Attractiveness is the Virtue most causally isolated from the others. It obviously has some effect on a document's reception; we don't know how big. We might hope the effect small just because of its independence from message-based Virtues, but first impressions are more influential than anyone suspected. (See Gladwell, What Is "Blink" about? (2005).) The pleasantness of fonts — distinct from their legibility, which instead improves clarity — is an example of a variable enhancing Attractiveness. Having explored the Clarity of fonts, in the future, I'll consider their Attractiveness.