Friday, November 20, 2009
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.