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)

Revising Orwell: Initial Conjunctions as Light Adverbs

Using the adverbial connective however (see "Banish Stock Transitional Expressions") is not an outright stylistic weakness but a device useful, even necessary, in speech, hence in fiction, a device, though often excessive, that persists because of over close identification of competent speech and writing. Characteristics of speech demanding artificial connectors are its short sentences and explicit signposts, so nonfiction writing calling for short sentences and signposts can warrant using adverbial connectives. Writing requires short sentences and signposts when it demands hyperclarity, as for legal briefs in our overcrowded courts.

Some statistics help in grasping the size of sentence-length differences. Many essayists write sentences averaging 22 to 28 words. Bryan Garner recommends sentences in legal briefs average 20 words. Plain-language advocates typically call for sentences averaging 15 to 20 words. Many excellent fiction writers seem to average around 18 words per sentence. (Hat tip to StevenBerlinJohnson.com, where you can find some surprising statistics and observations on writers' sentence lengths.)

If clarity demands only moderately shorter sentences, as in brief writing, occasionally starting a sentence with a coordinating conjunction, such as and or but, is a less distorting method of artificial connection than adverbial connectives, such as however, moreover, nevertheless, and in addition, terms depicting relations between referring clauses, not referenced objects. To appreciate why initial conjunctions are less distorting than adverbial connectives, it helps to understand the connective paradox: when they begin sentences, these so-called conjunctions function as adverbial connectives. A coordinating conjunction at the beginning of a sentence doesn't tie the two sentences together, sometimes advertised: it doesn't function like a semicolon to establish a relationship stronger than separate sentences but weaker than conjoined coordinate clauses. The reader, having read the sentence complete, can't undo the perception, so but no longer functions conjunctively. But takes the meaning of however and comes to exemplify the same lexical category. But always has an adverbial component; otherwise, it couldn't assert contrariety. Dropping the conjunctive component by using but at a sentence's beginning leaves only a light-adverb remainder.

When exceptional circumstances don't limit sentence length, the writer can be more precise by striking the initial conjunction, combining the sentences to turn the initial conjunction into an ordinary conjunction, or rewriting. George Orwell disagreed. Here's an example including an initial conjunction, but, and an adverbial connective (or stock transitional phrase), on the other hand, from George Orwell's essay "Politics and the English Language":

A newly invented metaphor assists thought by evoking a visual image, while on the other hand a metaphor which is technically 'dead' (e. g. iron resolution) has in effect reverted to being an ordinary word and can generally be used without loss of vividness. But in between these two classes there is a huge dump of worn-out metaphors which have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves.

I would rewrite the passage by eliminating the transitional phrase, using but to connect clauses within one sentence, and replacing the compound predicate reverted... and ... used with a simple predicate and adjective phrase, thus:

A newly invented metaphor assists thought by evoking a visual image, while a metaphor which is technically 'dead' (e. g. iron resolution) has in effect reverted to being an ordinary word, generally usable without loss of vividness, but in between these two classes there is a huge dump of worn-out metaphors which have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves.

The transitional phrase on the other hand helped convey that Orwell mentioned the newly invented and the dead as opposite statuses for metaphors. Joining the clause about the worn-out metaphors with the previous sentence, containing the contrast, makes the same point about opposite statuses without using the transitional phrase on the other hand. The clause about the worn-out metaphors introduces the opposites by locating worn-out metaphors between them. The sentence is longer than any of Orwell's, but the passage gains precision using fewer words.

Banish Stock Transitional Expressions

Writers are advised to avoid stock phrases. Writers are also advised to favor transitional expressions. Because a transitional expression is a kind of stock phrase, the advice favoring transitional expressions is misguided.

Here's a sentence without transitional expressions, taken from the previous Disputed Issues entry:

Plain-writing advocates commonly recommend short paragraphs. Very short paragraphs provide a false sense of Concision, actually compromised by forced redundancy.

The second sentence states a proposition opposed to the first. Inserting the stock transition however explicitly expresses the tension between successive clauses:

Very short paragraphs, however, provide a false sense of Concision...

However is so good a minimalist example of a transitional expression that, unless you consult definitions, it may not seem an expression. An expression's defining property is diminished semantic content borne of a stale combination of terms. Although however is a single word, it is composed of how and ever and gets its meaning from them figuratively. However vaguely expresses contrariety to the preceding clause.

Connection between sentences is more Concisely carried by sentence structure than expressions. Structural methods call attention to the clauses' relationship without vaguely stating it, as in the example where re-introducing the phrase short paragraphs from the first sentence's predicate in the second sentence's subject relates the sentences. Worse than the prolixity of unneeded expressions or the cacophony of their repetition, transitional expressions impair Clarity through vagueness, as using any stock expression substitutes reflex for thought. George Orwell describes the malady in "Politics and the English Language" (1946):

If you use ready-made phrases, you not only don't have to hunt about for the words; you also don't have to bother with the rhythms of your sentences since these phrases are generally so arranged as to be more or less euphonious. When you are composing in a hurry, when you are dictating to a stenographer, for instance, or making a public speech—it is natural to fall into a pretentious, Latinized style. Tags like "a consideration which we should do well to bear in mind" or "a conclusion to which all of us would readily assent" will save many a sentence from coming down with a bump. By using stale metaphors, similes, and idioms, you save much mental effort, at the cost of leaving your meaning vague, not only for your reader but for yourself.

To express precise thoughts with fresh combinations of words, writers should avoid stock phrases. The same admonition applies to the subcategory transitional expressions. Other stock expressions imprecisely describe or denote the external world; transitional expressions imprecisely refer to the relations between clauses.

(See also "Revising Orwell: Initial Conjunctions as Light Adverbs.")