Tuesday, December 29, 2009

The that – which rule: Cure or cause of uncertain meaning

One topic in social psychology concerns behavior reactions when strongly held irrational expectations are disconfirmed; the beliefs may paradoxically strengthen. Remarkably, rules of grammar—such as our topic, the that – which rule—can be the subjects of these strong beliefs. Attorneys sometimes worry that violating one of these imaginary rules of grammar will prejudice judges against them, but believers—as we'll call those who contend the that – which rule governs grammar or usage—don't readily notice disconfirming evidence, and a believing judge won't notice yours. The proof is that when confronted with disconfirmation, believers express shock—not at their own credulity but at the enormity committed upon the English language.

Legal-writing authority Wayne Schiess, I was surprised to learn, strongly upholds the that – which rule, forbidding the use of which without a preceding comma to start a relative clause. (See http://tinyurl.com/yamenoc and http://tinyurl.com/ycz7hvk.) A reader brought Wayne's attention to the violation of this supposed grammar rule in Uniform Commercial Code section 2 – 714:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2 – 607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.

Wayne's informant stared at UCC, § 2 – 714, most of the day, but he apparently never considered that his discovery controverted the supposed rule. Wayne agreed with his reader about the supposed which error; that should replace which, Wayne instructed, and with Wayne's help, I understand what drives this usage convention. When which appears without preceding comma, believers feel uncertain about the writer's intent, the uncertainty arising from English grammar's reliance on the comma to distinguish nonrestrictive clauses, hence on the omission of a comma to distinguish restrictive clauses. Since it's inherently harder to avoid omission errors than commission errors, the believer wants the added security afforded by confirming the comma's omission.

The rule provides the reader with greater confidence that the author intended a restrictive clause and didn't carelessly omit a comma, but the reader is unlikely to notice and question your meaning unless you err. Believers (probably a small minority of legal readers) derive a sense of security from authorial obedience to the that – which rule only when they are made insecure by deliberately applying the misguided rule.

Saturday, December 5, 2009

The curse of excessive citation

Brief-writers' faulty citation practice betrays their failure to subordinate the entire brief to persuasion. Many legal propositions asserted will be truisms or otherwise uncontested, as a 19th-century California Supreme Court recognized when it wrote, "No citation of authorities is required to show that a will is to be construed according to the intention of the testator." (See In re Estate of Stewart (1887) 74 Cal. 98.) The introduction should surprise most brief writers, ruled by today's norm to cite wherever possible.

Brief writers mimic judicial opinions by citing comprehensively; but judges understand that briefs and opinions serve different purposes, and judges aren't pleased with brief writers. In one judge's account, "A lawyer should include as few [citations] as practical…" A study of appellate judges revealed they believed that lawyers should restrict presentations of authority to cases useful to the judges, a standard they claimed lawyers "by any measure" failed to meet. Judge Ruggero J. Aldisert recommended that brief writers "Use authorities sparingly and only to the extent necessary to support a well-thought-out theory of your case." (All quotes from B. Garner, The Winning Brief (1999) at p. 131.) Judges aren't experts on their own persuasion, but here, the judges advocate citing cases only to prove points in contention for good reason: the practice avoids miscue by informing the court only of what's relevant.

Even if lawyers weren't often confused about the distinct properties of a brief compared to a judicial opinion, the amount of time lawyers spend reading opinions would distort their perceptions. When a brief writer looks at a legal proposition unaccompanied by citation, it looks unfinished, but the writer should suppress this misperception.

Lawyers are also subject to the much-studied cognitive illusion of overestimating the probability of conjunctive statements. (See http://tinyurl.com/ycdqdbm.) A table of authorities with thirty-five entries proclaims that the lawyer's argument succeeds only if he correctly applied that many legal propositions. A table of authorities containing seven authorities suggests that 20% as many tests establish the argument's soundness. Assuming the writer provided authority for each contention, the brief with seven authorities is logically more secure, although many experimental subjects naively surmise that satisfying 35 conjoined claims is easier than satisfying seven. The conjunction fallacy encourages more citations, but an uncluttered brief with a compact table of authorities better persuades.