Saturday, November 28, 2009

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.

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.

Friday, November 13, 2009

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 ( 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.

Wednesday, November 4, 2009

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.