Wednesday, July 29, 2009

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 ( 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 — clich├ęs 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 entryOverzealous Concision: Density.)

Saturday, July 18, 2009

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.

Tuesday, July 7, 2009

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.