Monday, December 27, 2010

On the irreversibility of writing: Procrastination and writer's block—Part 3. Solutions

To develop a case theory, legal writers profit from deep thought, which they can't turn on at will. These stages depict it:

1. Immersing in the subject, typically legal research;
2. Thinking concretely at a local level, as necessary to refine the research process but insufficient to attach the writer to a theory formed ahead of its basis;
3. Maintaining a reflective and receptive attitude toward the subject for days (only after completing most research);
4. Conceiving an integrative idea (a deep thought), without its immediate instigation;
5. Attending to the thoughts following (but not by inhibiting potentially relevant competing lines of thought).

Hence, the problem: the busy attorney can’t drop everything when blessed with a breakthrough deep thought that evokes more thoughts. Busy attorneys can note the deep thought, but they can’t follow it when it’s fresh. Nor can they afford maintaining a reflective attitude over a span of days. Because attorneys can’t randomly interrupt their workday, the unstructured lifestyle of a writer is more compatible with deep thought, a reason ghostwriter may produce, all else being equal, work superior to attorney’s.

Deep thought isn’t the only way to stave off premature commitment, although it might be most powerful. In free writing, the writer records every thought, while avoiding preoccupation and premature structure. Free writing is hard, and it may prove impossible for a slow typist. You can combine deep thought and free writing; then deep thought should come first.

Trouble deciding between the alternatives, deep thought and free writing? This correlation might help: personality traits distinguish free writers from deep thinkers. Extraverted personalities, seeking external engagement, do better with free writing; introverts with deep thought. Deep thought has one advantage over free writing: it dedicates more mental resources (such as working memory) to thought rather than—as happens no matter how fast the typist—draining resources by typing.

Bryan Garner (The Winning Brief) proposes another method for avoiding premature theorizing, the "whirlybird," popularly called mind mapping. A mind map is an outline that maximizes the amount of information a page displays. (You can see an example of a mind map.) Aficionados are prone to over-rate mind mapping as a creativity device. Although Garner uses mind mapping in the “madman” phase of the writing cycle, it’s more suited for trolling memory. In Garner’s terms, it best serves the “architect" phase.

If deep thought or free writing have laid the groundwork, the writer will continue to conceive deep thoughts while paragraph writing, which compares favorably with mind mapping in fostering creativity. Nobody has explained why paragraph writing beats outlining as a thinking tool. (Few have even noticed.) I offer this conjecture. Paragraph writing encourages deep thought because in finding the right word, the writer unconsciously generates a lexical selection pool. This goad to the unconscious generation of ideas is the missing ingredient in mind mapping and outlining, which discourage linear thinking for spans sufficient to escalate the unconscious production of alternatives.

Deep thought and free writing are options when the misery of procrastination informs you that you aren’t prepared to write—but always keep in mind, they’re no remedy for shallow research, in legal writing the most common cause of procrastination.

Sunday, December 19, 2010

On the irreversibility of writing: Procrastination and writer's block—Part 2. The unexpected cause

Even without understanding why, writers know that writing's traces, like Internet postings, are often indelible. Knowledge—that writing without enough time or ideation can set you back—is often the immediate source of blockage. Forgetting what you know is, consequently, one way to surmount a procrastination problem. Assigned a difficult project and subsequently experiencing fallow, the writer may profusely thank an advisor bearing the message, "get anything down." The get-anything-down writing panacea won't improve the quality of the project subjected to it, but as permission quieting conscience, it can augment sheer quantity.

Why assume there's a cause of procrastination specific to writing, when procrastination itself isn't? Good question. First, writing as subject of procrastination—sometimes taking a unique form, blockage—differs from most tasks agents procrastinate about, in that most procrastination concerns unpleasant tasks. Second, a generalized version explains generic procrastination, which also occurs because the procrastinator registers the present moment's prematurity, when premature performance would—by error or inefficiency—ultimately cause the work to be inferior. Writing procrastination differs from generic procrastination in that motivation itself, its arousal depending on a deadline's approach, often is the generic procrastinator's missing component.

Despite the explanation's generalizability, I'll continue to focus on forms of procrastination specific to writing, for which I prescribe forethought, the near opposite of "getting anything down." This is not to say that lawyers don't think much. Good lawyers do immense amounts of research before writing briefs, and significant thought occurs in the interstices of cases and statutes, but lawyers seldom prepare by engaging in sustained thinking. The press of business squeezes out deeper thinking, but not in the notorious, direct way, brute lack of time. Lawyers could allocate a few hours for contemplation, compensated by greater fluidity following submersion in thought. Insufficiency of work time isn't necessarily part of deep-thinking deficiencies, since the lawyer is squeezed when time is ample. The problem lies elsewhere. The kind of thinking suffering deficiency doesn't consist of organizing the lawyer's ideas, but inventing new ones; that can't be scheduled, because its onset can't be willed.

Next part: Solutions

Monday, December 13, 2010

On the irreversibility of writing: Procrastination and writer's block—Part 1. Premature composition limits thought and weakens style

"Just get something, anything down," well-wishers advise the blocked writer, but a false assumption grounds this advice. The well-wishers assume that the writing process is reversible, and early beginnings don't drive toward predetermined results. Assuming complete reversibility—what is done can always be undone—seems reasonable due to tacit analogy with some common, reversible physical acts. If I pace across the room, I can return to the starting point. The reasoning applied to pacing is sound because pacing is a reversible process. Any point reachable from point A is reachable from point B, this proven by my ability to return to point A from point B. Analogously, writing anything is held at least as good as nothing. The apparent proof: the option to delete the document and start over. Getting something down is at worst harmless, probably useful; at least some passages are bound to be, and if so, writer approaches goal. Elegant but simplistic: most changes aren't reversible. In complex or nonphysical change, irreversibility is the rule. When Humpty Dumpty fell off the wall, all the kings horses and men couldn't put him back together. Truly. What is thoroughly shattered resists all efforts at reassembly. The same holds for nonphysical change. When judge instructs jury to disregard misconduct, some doubt of success lingers about unringing the bell.

Which model, reversible or irreversible, pacing or unringing, resembles writing? Sometimes the writing process resembles return to a spatial starting point; other times, shattering an egg or unringing the bell, but regardless of practical result, the writer changes by retaining the inexpungible memory of previous work. Forms don't matter: detailed outlining complicates thematic reorganization, no matter how facile the software. Another approach to early writing, composing and combining random snippets, creates a different product than front-to-back composition: the transitions aren't as smooth as in a true first draft; corrections, as fresh.

Recent scientific research explains how premature writing constrains thought. The nonobvious finding: each recollection of an idea strengthens the recaller's belief in its truth. Dwelling on initial ideas by premature composing or outlining increases their attractiveness, decreasing their abandonability. The effect works on the principle that exposure (within limits) induces liking (a finding a bit discouraging about human rationality). As ideas become more familiar, legal writers lose perspective by falling in love with their own substance and style.
Next part: The unexpected cause of procrastination and writer's block

Tuesday, November 30, 2010

Sarah Palin and the disputed issue of dictionary choice

A cheap and dishonorable publicity stunt—this recognized even by a pro-Palin site—the New Oxford American Dictionary (NOAD) proclaimed Sarah Palin's refudiate "Word of the Year." NOAD recognized, in a flaming display of incoherent thought, an eccentric utterance as the year’s foremost word, when it lacks the bare status of word, inasmuch as NOAD doesn’t plan on refudiate's inclusion; neither does the all-inclusive Oxford English Dictionary. NOAD’s definition, a general sense of reject, puts the supposedly performed "lexical analysis" in question: reject, itself a broad term, doesn’t self-evidently require supplementation with a form vaguely broader.

Some commentators seem to pity Palin, providing justification as though offering their services, pro bono, as her attorney. Merrill Perlman at the “Columbia Journalism Review” speculates that maybe we need refudiate, meaning to reject based on evidence or belief, no extant word filling the role. Unoccupied conceptual space doesn't rationally justify coining a word, as most of conceptual space is denominated, of necessity, by combinations of words. Only frequent use of a concept or its foundational nature can justify, to the extent the term applies, making a single word of it. Rejection based on evidence or belief rarely needs to be distinguished from plain, ordinary rejection, and the distinction doesn't help comprehend Palin's comment. Recall, she maintained that peaceful Muslims should refudiate the plans for the New York mosque. What she meant was simply reject; there was no implied influence either by evidence or belief. She was saying: Peaceful Muslims, don't go for this idea. If there's a question about it, let Sarah Palin herself be arbiter. When the error was publicized, she replaced the term with reject—not, incidentally, the demeanor of a confident, budding Shakespeare.

While wanting to discuss the perplexing reaction of other bloggers to the award, I’m not exercised by a word’s premature acceptance. There's, rather, something deeply wrong with the logic of the construction, and its significance shouldn’t be belittled, since the nature of the mistake could inform us about the intellect of a potential U.S. President; the unity of language and thought applies here as much as to the intellectual pinnacle. As Erin Brenner at “The Writing Resource” significantly observed, refudiate is supposed to be a portmanteau word, receiving its meaning by blending its constituents, supposedly, repudiate and refute. Neither rejection based on evidence and belief nor rejection follows the formula. The former, the meaning the “Columbia Journalism Review” proposes, is narrower than either of the supposedly blended constituents, whereas the definition urged by NOAD and Palin herself, reject, is still broader than the disjunction, more so when further broadened under NOAD's "lexical analysis."

To accept Palin-defined refudiate, you must either fail to understand that disjunction creates a broader class, an error common enough in practice but not in abstract contemplation; or you must erroneously understand repudiate, refute or both. Here it gets interesting, as we’ll see that NOAD demonstrates a perverse consistency.

Palin's mistake must concern refute; it's the term harboring a well-known confusion between refute and deny. NOAD’s usage note for refute says:

Refute and repudiate are sometimes confused. Refute means ‘prove (something or someone) to be false or erroneous’: attempts to refute Einstein's theory. Repudiate means ‘reject as baseless, or refuse to acknowledge’: scholars who repudiate the story of Noah's Ark. One could repudiate by silently turning one's back; to refute would require disproving by argument. In the second half of the 20th century, a more general sense of refute developed from the core one, meaning simply ‘deny’: I absolutely refute the charges made against me. Traditionalists object to the second use on the grounds that it is an unacceptable degradation of the language, but it is now widely accepted in standard English.

NOAD endorses Palin's confusion before the fact, the confusion that allows her to consider rejection the product of blending repudiation and refutation; refute defined as deny does blend with repudiate to create the concept reject. The Palin-style confusion about refudiate requires this confusion about refute, which NOAD alone endorses. So, NOAD was engaged in more than publicity seeking after all; it was shoring up its authority after the self-inflicted damage in defining refute.

If there is an accepted tendency to confuse refutation with denial, I haven't noticed. Even if such a trend existed, it wouldn't deserve promotion. The most descriptivist of linguists should accept that the confusion involves a loss of specificity, a degradation resulting from unwillingness or inability to discriminate the precise meaning of refute. The NOAD descriptivists take the doctrine to an extreme when they equate considerations of logic with the influence of tradition, while the anti-intellectual Palin eschews reason and thus the need for and even the meaning of literal refutation. Eschewing reason, thus the need to refute anything, fosters insensitivity to the specific meaning of refute.

NOAD alone advocates refute's ersatz usage because NOAD takes a position that justly can be called extremist on the prescriptivist – descriptivist linguistics spectrum; the online descriptivist, Geoffrey Pullum at the “Language Log,” for example, favors NOAD. NOAD's extremism in linguistics creates a natural affinity with Sarah Palin's in politics—not, to be sure, political agreement; only the similarity-based affection for an extremist anti-ideologue.

Friday, November 19, 2010

The benign consequences of reading casebooks

To improve the sad state of legal writing, understanding the origin of the deficiency helps. Some teachers and authorities propose, in all seriousness, that studying badly written judicial opinions in law school harms students' style.

No one questions that law-school casebooks contain some of the foremost legal thinking in our tradition. Yet, some legal-writing scholars claim incisive thought comports with stylistic atrocity so extreme its contemplation further reduces law-students' meager literary skill. The claim conflicts with the unity of language and thought.

Bryan Garner writes in The Winning Brief:
In law, the quality of writing matters. Good writing can win cases, and bad writing can lose them. To some, this notion is self-evident. But to others it's dubious at best.

What explains these markedly divergent views? Ultimately, the disagreement hinges on the extent to which a given lawyer undertands that language molds every human thought. Language is embedded in the very way in which you perceive the world. Thus, it's imposible for a judge to focus exclusively on the merits of a case without being affected by the language used to express those merits.
Garner addresses the relationship between writing and thought from the reader's standpoint, but no great leap is required to see implications for the writer. Thinking and writing form a unity, and expression of excellent thought in atrocious writing is inconceivable. That's the point writing authorities should make.

The severe critics of judicial style usually don't provide examples. Let's assess the quality of writing in an arbitrarily selected sample of law-school cases.

Palsgraf v. The Long Island Railroad Company (1928) is a standard textbook case by Judge Cardozo, who all except automatic rejecters of sentence complexity recognize as one of the foremost legal writers. Here's a sample:
Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all (Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one's bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. Confirmation of this view will be found in the history and development of the action on the case.
The writing is clear, concise, and euphonic; one couldn't wish for better for getting a sense of legal style, particularly stylistic variety. But then, I did choose a biased example, a truly great writer, who happened to be a judge.

Sherwood v. Walker (1887) is the mutual-mistake case concerning a contract for sale of a cow. Unlike Cordozo, the author, Justice Morse, has no reputation as a writer. A sample:
It seems to me, however, in the case made by this record, that the mistake or misapprehension of the parties went to the whole substance of the agreement. If the cow was a breeder, she was worth at least $750; if barren, she was worth not over $80. The parties would not have made the contract of sale except upon the understanding and belief that she was incapable of breeding, and of no use as a cow. It is true she is now the identical animal that they thought her to be when the contract was made; there is no mistake as to the identity of the creature. Yet the mistake was not of the mere quality of the animal, but went to the very nature of the thing. A barren cow is substantially a different creature than a breeding one. There is as much difference between them for all purposes of use as there is between an ox and a cow that is capable of breeding and giving milk. If the mutual mistake had simply related to the fact whether she was with calf or not for one season, then it might have been a good sale, but the mistake affected the character of the animal for all time, and for its present and ultimate use. She was not in fact the animal, or the kind of animal, the defendants intended to sell or the plaintiff to buy. She was not a barren cow, and, if this fact had been known, there would have been no contract. The mistake affected the substance of the whole consideration, and it must be considered that there was no contract to sell or sale of the cow as she actually was. The thing sold and bought had in fact no existence. She was sold as a beef creature would be sold; she is in fact a breeding cow, and a valuable one. The court should have instructed the jury that if they found that the cow was sold, or contracted to be sold, upon the understanding of both parties that she was barren, and useless for the purpose of breeding, and that in fact she was not barren, but capable of breeding, then the defendants had a right to rescind, and to refuse to deliver, and the verdict should be in their favor.
The case is old, and legalese was a worse problem in the past; but where's the legalese in the quoted paragraph? While lacking the beauty and concision of Cordozo's writing, this isn't writing so bad it damages law students' talents by mere reading: it's far better than what most law students can produce.

The final case helps answer the conundrum about the apparent absence of legalese in the samples. Hadley v. Baxendale (1854) is a still older case, moreover British. From a writing perspective, the case report contains two parts of vastly differing quality. Here's a sample of the good writing, in the second half of the report:
Now we think the proper rule is such as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The Judge ought, therefore, to have told the jury, that, upon the fats then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case.
Any writing instructor would be proud of a student who wrote this well. Matters look different in the first half of the case report.:
The first count of the declaration stated, that, before and at the time of the making by the defendants of the promises hereinafter mentioned, the plaintiffs carried on the business of millers and mealmen in copartnership, and were proprietors and occupiers of the City Steam-Mills, in the city of Gloucester, and were possessed of a steam-engine, by means of which they worked the said mills, and therein cleaned corn, and ground the same into meal, and dressed the same into flour, sharps, and bran, and a certain portion of the said steam-engine, to wit, the crank shaft of the said steam-engine, was broken and out of repair, whereby the said steam-engine was prevented from working, and the plaintiffs were desirous of having a new crank shaft made for the said mill, and had ordered the same of certain persons trading under the name of W. Joyce & Co., at Greenwich, in the country of Kent, who had contracted to make the said new shaft for the plaintiffs; but before they could complete the said new shaft it was necessary that the said broken shaft should be forwarded to their works at Greenwich, in order that the said new shaft might be made so as to fit the other parts of the said engine which were not injured, and so that it might be substituted for the said broken shaft; and the plaintiffs were desirous of sending the said broken shaft to the said W. Joyce & Co. for the purpose aforesaid; and the defendants, before and at the time of the making of the said promises, were common carriers of business of common carriers, under the name of "Pickford & Co."; and the plaintiffs, at the request of the defendants, delivered to them as such carriers the said broken shaft, to be conveyed by the defendants as such carriers from Gloucester to the said W. Joyce & Co., at Greenwich, and there to be delivered for the plaintiffs on the second day after the day of such delivery, for reward to the defendants; and in consideration thereof the defendants then promised the plaintiffs to convey the said broken shaft from Gloucester to Greenwich, and there on the said second day to deliver the same to the said W. Joyce & Co. for the plaintiffs. And although such second day elapsed before the commencement of this suit, yet the defendants did not nor would deliver the said broken shaft at Greenwich on the said second day, but wholly neglected and refused so to do for the space of seven days after the said shaft was so delivered to them as aforesaid.
Terrible writing, sporting the expected legalese. Why the change? The second quote summarized statements by the attorneys, such as "the first count of the declaration." The clerk compiling the introductory statement stayed close to the attorneys' language, and its inferiority is patent.

On the whole, judges write better than attorneys, and the disparity was more pronounced in mid-19th-century England. When judges write so much better, explaining bad writing by the quality of judicial product is a nonstarter.

Friday, October 29, 2010

Must zealous attorneys be committed writers?

This entry is dedicated to law-school students: new lawyers must decide on what to do when the boss demands legalese. Ray Ward at the (New) Legal Writer recently brought his readers’ attention to the issues concerning “What To Do If Your Boss Prefers Legalese.” Ray recommended Wayne Scheiss’s essay “When Your Boss Wants It the Old Way.” But Wayne’s advice is mistaken.

Wayne apologetically advises his readers that the issue isn’t worth the challenge, and he means the fruits of challenging the boss, not that winning the challenge is unlikely.
The ideas of the plain-language movement and the modern trends in legal writing are designed to make your writing clearer, easier to read, and precise. Those are important goals for legal writing. Though as a legal-writing instructor it pains me to say this, they are not important enough to risk your job over.
Wayne also advises associate attorneys to do it right when they’re given the opportunity, but everyone knows that.

Wayne commits errors of commission and omission. First, the error of commission: Wayne underestimates legalese’s scope; he presents the issue as one of “new way” and “old way,” as a style appropriate or not to a particular period. But legalese encompasses practices as diverse as prolixity, irrelevance, and boilerplate. Its use engenders still further problems, including the analytic shortcomings of over-citation, superficiality, and over-inclusiveness.

These diverse practices and shortcomings are the main problem today, when doublets, triplets, and archaic expressions like "comes now" mainly characterize the writing of pro-se litigants and, consequently, dislodge easily. When you take account of the vast scope of legalese and its multifarious effects, then you can see contesting it is worth the fight, which you might decide creates an ethical imperative for a truly zealous advocate—isn’t decent writing part of proper representation?—but the only way you can win on the broad theater of legalese is by convincing your boss you’re the better writer. Good luck. Even if you’re clearly superior, your boss’s ego will dictate the terms.

An associate attorney’s only recourse is actively avoiding employers who demand inferior work; this is the advice Wayne omits. You should also know what law schools generally don’t impart: when it comes to writing, many employers demand inferior work because they can’t accept that they’ve been writing poorly, particularly if they’re informed by an employee, whom they’re paying to serve subordinately. (It’s remarkable how attitudes change when you produce work under contract rather than as an employee.) Some prestigious employers are terrible writers, and law school doesn’t prepare students for the sheer egotism of many lawyers who employ associates.

When interviewing, job candidates seriously committed to improving their legal writing should question the interviewer about the firm’s writing practices and policies. I advise declining employment when the job requires inferior writing.

Thursday, August 26, 2010

The Typographical Rear Guard

Absence of controversy usually lets matters of typography elude Disputed Issues. Typography is an engineering discipline resting on centuries of experience and a firm scientific basis. Occasional controversies arise at the periphery, such as specific font choices, but core typographical matters are well settled, including: Should margins be justified or ragged right? and How many spaces should separate sentences? Yet, lawyers ignore the typographers’ answers:

  • Use a ragged-right margin for word-processed text.
  • Never use more than a single space between sentences.
        The predominance of justified margins in law is easy to understand. Ideally, justified margins make columns appear columnar, a look the ancients pursued by lining up both the left and right margins when copying manuscripts. The ancient pedigree of the columnar form testifies to its inherent pleasantness. Today, trade books are usually printed justified, and proponents of typographical modernization might themselves have introduced some confusion into the discussion by urging legal writers to emulate the publishers in using only a single space to separate sentences. Doing as the book publishers is good advice for sentence spacing and bad advice for text alignment because of the strengths and limitations of desktop products. Short of the costly solution of professionally printed briefs, the decision whether to use justification or ragged-right margins depends on nontechnical considerations: Is it more important to prepossess the client or persuade the judge? The time the lawyer's staff devotes to create an almost-readable document impresses some clients, but reading a word-processed document with justified margins is an annoying experience.

        Unexpectedly, the superiority of two spaces between words is upheld by some informed legal writers, who after being set straight, switched to one space between sentences and then decided two spaces were better after all. Sometimes the reverters complain about rare circumstances where a single space is misleading. More often, they conclude that, despite its origins in the obsolete typewriter’s shortcomings, the extra space aids comprehension: the right idea for the wrong reason. (See

        Young lawyers’ loyalty to the old two-space typewriter convention is puzzling. Two biases seem relevant: 1) the
        more-is-better evidentiary heuristic and 2) false assumptions about the mechanics of reading. The more-is-better heuristic, the disposition to think that supplying more evidence (such as an extra space) necessarily produces a higher level of certainty, accounts for the tendency of reverters to stress occasional typographic anomalies, while not considering their counterparts. Supporting this explanation is the practice in the 19th century of placing a super-space, larger than the two spaces recommended for typewriters, at the ends of sentences. Redundant evidence and the importance of processing speed make applying the more-is-better heuristic misleading.

        Craving stronger cues for sentence endings expresses a mistaken theory of the reading process—or fault in the process itself—which confuses the units for eye fixations with those involved in parsing meaning. While the sentence is the basic unit of meaning, eye fixations are blind to meaning, as reader can’t distinguish meaningful units until brain analyzes input. Using the extra-large space as the automatic boundary for eye fixations, a tendency promoted by extra spacing, slows reading. Efficient readers read
        through the period and space.

        Friday, August 6, 2010

        Refudiate [sic] pomposity

        3rd entry in the Pomposity Series

        Had it been me, I would have pleaded typo! and changed the f to a p. That may show that, like Palin's Obama, I lack "cojones"; Sarah Palin stood her ground, and urging an attitude toward the lexicon more libertarian than conservative, she reveled in the Shakespearean freedom to coin new words on Twitter, igniting a discussion more interesting than her political opinions. Did Sarah Palin err as a communicator in using the neologism refudiate? What does her usage and deportment regarding it categorically reveal about her character? These are the debate’s two central issues, which I propose to take seriously.

        Refudiate is a blend, a portmanteau word, but which words does the formation blend? Most readers debating Palin’s coinage assumed refudiate blends repudiate and refute, but some readers thought repudiate and reject. Reject would be a nonstarter except Palin changed the message to reject within a few hours. Another uncertainty, mostly unnoticed, is that refuse is a strong competitor, better than refute (which is wrong). Shakespeare’s coinages didn’t burden the listener with uncertainty about the words he blended.

        Since Palin relies on blending for meaning, the ambiguity is unfortunate, but more so, ironically, is the ambiguity’s ultimate harmlessness. Since the reader doesn’t need to know what the blend adds to the meaning of
        repudiate, the blend creates nothing new: repudiate or reject does the job equally well. If Palin had intended a specific meaning, she didn’t convey it effectively: given opportunities, Palin never offered to define refudiate.

        Ray Ward at The (New) Legal Writer says Palin escapes demerit because her neologism didn’t detract from the message’s clarity, but it’s hard to see how this could be, when even a typo tends to confuse. To the point, redundancy confuses; to construe the writing, the reader tries to find some justification for using two expressions. The reader’s reaction to redundancy is to distinguish the meaning of the redundant expressions. Different word, different sense, is not only a presumption of legal interpretation but an assumption generally involved in textual interpretation. A blend of two words whose intended meaning corresponds to one or each of the blended words is as redundant as consecutive synonyms.

        This redundancy can illuminate aspects of Palin's character because it’s a redundancy of a special type, the type prevalent in legalese. Refudiate is a contraction of legalese's dreaded doublet or triplet. Had Palin chosen not to coin a word by blending synonymous constituents, she would have said:
        Peaceful Muslims, pls repudiate, reject, and refute.
        Synonyms strings—doublets, triplets, and longer—contribute to legalese’s pompous form. Common in official ceremonies, synonym strings are a form of bullying hyperbole, invoked ceremoniously by officialdoms. The truth, the whole truth, and nothing but the truth. Lawyers adopt legalese, including traditional synonym strings, as an outlet for pomposity, and refudiate is as pompous as any conventional triplet. (See “Legalese: Pomposity Ritualized.”) Plain writing disables legalese as defense against actual pomposity, resulting in its florid eruption, and neologisms and malapropisms with embedded synonym strings function for Sarah Palin as legalese functions for pompous lawyers. When criticism interrupted Palin’s preferred style for expressing pomposity, the result was the same as when an actually pompous lawyer tries plain writing. (See “Actual Pomposity.”) With the defense blocked, a more direct pompous form emerged, which observers recognized as pompous. Palin’s overbearing refusal to admit petty error and her presumptuous Shakespeare self-comparison were eruptions of actual pomposity.

        Monday, July 19, 2010

        The Bar-Exam Ritual: Good or Bad for Legal Writing—The Hidden Meaning of “Memorization” among Exam Abolitionists

        While law-school exams harm law students' writing, the bar exam probably helps by rewarding legal understanding. Yet, to judge from the discussion boards, defenders of bar exams are the minority. A debate arose when Elizabeth Wurtzell, author of the best-selling novel Prozac Nation, called for abolishing bar exams. Wurtzell recently graduated from Yale Law School, but she failed the bar exam on her first try. Wurtzell is convinced the hiccup in her career was the bar exam's fault. The Volokh Conspiracy (Richard Epstein and John Yoo on the Bar Exam) agreed with Wurtzell's conclusion; posters to several law blogs discussing Wurtzell's proposal wrote hundreds of comments in a few days.

        On the question's merits, the bar exam is to law-school exams as the undergraduate final examination is to a weekly test: cramming for weekly tests and law-school exams promotes shallow learning and unproductive rote memorization. Accurate research and perspicacious writing, as well as intelligent consumption of the work product, require deeper legal knowledge, fostered by an integrative bar exam more than by narrow law-school exams. In further contrast to bar exams, law-school exams are distinctly bad for legal writing because prolixity pays, whereas for the bar exams' broader subject matter, habits of succinct expression prevail.

        Bar-admitted lawyers don't have a tangible stake in this discussion, and nobody claimed, from a civic-minded perspective, that the bar exam kept gifted lawyers from practicing. Then, why so much interest in this topic? Posters' themes answer the question by the bias they reveal. Although bar exams aren't intended to be memory intensive, posters often characterized the bar exams as tests of memorization. Most posters refused to acknowledge that bar exams test for issue-spotting skill rather than memorized detail. Posters either forgot or disagreed with professors' usual advice against memorization as a study strategy.

        Their themes suggest that posters were engaged in a tacit defense of their ancient choices of law-school goals—subtle, too often unconscious decisions, with unforeseen consequences. "Memorization" is a slur used to characterize and reject mastery of subject matter as the goal in law school, instead measuring success by grades and accolades—capitalizable rewards (advancement). As common practice in law, terms often mean their ordinary opposite (e.g., continuing a trial means interrupting it; a judicial error so severe that any efforts to undo it must be deemed futile isn't an irreversible error but a reversible one). Law students, present and former, adopt this naming practice and term learning substantive law and legal reasoning memorization, implying, ironically, that cramming for law-school exams is reasoning. The majority embrace the advancement theory of success: they assume that subject mastery will be either the fruit of their present efforts to advance their careers or the fruit of their future career advancement, the latter's enjoyment beginning years before the fruit's harvest. A minority focus on mastering the substance and reasoning processes of law and thrive on the Socratic Method. This group believes that top grades are either dispensable or inevitable.

        The two most famous bar-exam abolitionists participating in the discussion—Elizabeth Wurtzell and John Yoo (yes, Yoo the war criminal)—confirm that opposing the bar exam defends practicing the advancement theory of success in law school, warding off regret about that practice. Yoo's weak legal understanding and his demonstrated motives both make the point. Yoo's "torture memos" betrayed a grasp of basic law so tenuous it masked the willfulness of his deceit. Yoo's contribution to the bar-exam discussion stated his disingenuous agreement with Wurtzell that bar exams mostly test memorization. Yoo's comment demonstrated his dedication to advancement and self-promotion because, as one poster remarked, Yoo was greasing his connections with former-classmate Wurtzell.

        The fit with this self-justification hypothesis about stances on the bar exam's value is even better for Wurtzell, who despite her Law School Admission Test score of 160, received honors at Yale Law School, a miracle of overachievement. She revealed her lack of skill at argumentation by advancing the painfully weak contention that the "best" often fail bar exams: Wurtzell maintained the "best's" inability to follow "meaningless" rules is a virtue. Professor Richard Epstein demolished this argument in one line: "I am never hired to explain rules that everyone understands." Most revealing in expressing her advancement orientation, Wurtzell's essay fulsomely praised her new boss.

        Monday, May 24, 2010

        “Good enough” consumerism and the myth of imperfectibility

        Bloggers' reactions to "good enough" consumerism reveal the problems that keep legal writing inferior. Good-enough consumerism is fascinated by qualitative changes in our tastes attendant on changes of mere degree in production and delivery efficiencies. The paradigm is the rise of the MP3 recording medium, which allows high compression ratios but reverts fidelity to the cassette-tape era.

        Professionals espousing work-product quality could resent comparisons with least-common-denominator recording media, but the predominant reaction among bloggers isn't to challenge but to avoid, to find the legal loophole that escapes the good-enough standard's obvious implications. Carolyn Elefant interprets the good-enough concept by denying its obvious meaning, that consumers evaluate services with an eye to convenience and economy, to the derogation of traditional indicia of quality. "[M]y take away from the Wired article isn't that cheap and simple means compromising standards." Compromised standards are exactly what the Wired article means because it says so: "Having it here and now is more important than having it perfect." Another blogger, representing the legal-writing field itself, denies good-enough consumerism's implications instead of its premise. Wayne Schiess acknowledges firms crowd lawyers' time for producing quality work, and he suggests the solution isn't to settle for producing bad work but to strive for excellence, despite the obstacles precluding its achievement. Wayne's sophistic position changes the argument's subject. Where the problem is that legal writers have too little time to produce excellent work, Wayne offers no direct advice on what they should produce; instead, he addresses what they should strive to produce.

        The whole discussion lacks analysis of when the "good enough" paradigm applies; when is the correct question to ask "Is it good enough?"; when, "Is it as good as I can make it?" Two factors decide when "good enough" is the correct standard: 1) the perfectibility of the project and 2) the estimability of the "good enough" level. Which standard is rational reduces to whether we can attain relative perfection and whether we can know when a product is good enough. The good-enough standard is unsuitable for legal writing because no one knows what's good enough. Estimates under such uncertainty will run low because of the overcompensation bias, as estimating what's good enough is analogous to compensating for a perfectionistic bias; when we consciously try to temper our performance to compensate for a bias, we overshoot. The high degree of uncertainty regarding adequate quality argues for a relative-perfection standard governing legal-writing projects such as briefs—provided relative perfection is attainable. Proponents of "good-enough" consumerism pronounce, "The perfect is the enemy of the good," but when perfection and reasonable quality war, perfection's unattainability is the casus belli. While no one attains absolute perfection in producing complex work, lawyers unthinkingly apply the conclusion to relative perfection: the best efforts standard.

        The myth of relative perfection's unattainability is the work-ethic's neurotic hypertrophy: professionals perennially atone for short-changing customers under the supposedly never-achievable best-efforts standard in the guilty pseudo-knowledge that more, hence better, is always possible; the curses of excessive citation, verbosity, and issue proliferation reinforce the myth of relative imperfectibility. If more always means better, relative imperfectibility would be justified, but on most projects, the point comes when writing more lowers quality. This point of relative perfection isn't necessarily good, but in legal projects, it's the most writers can offer and the least they should.

        Monday, May 3, 2010

        Actual Pomposity

        Click on image to expand.

        Since legalese helps lawyers avoid pompous eruptions, many lawyers will part with legalese, if ever, only if they first overcome their actual pomposity. Recognizing actual pomposity is the first step. Lawyers express actual pomposity—real self-important conceit, distinguished from its legalese camouflage—by style, content, and the interaction of style and content.

        Style expresses pomposity when it inflates the tone to signal that the author thinks himself worthy of equally inflated public regard or when it expands the space that signals of high self-regard occupy. The most subtle stylistic type of pomposity is affectation, which offhandedly devotes unnecessary space to the writer, as when, instead of just stating his position directly, the writer dwells on himself by writing, "I am inclined to believe…" Stylistic pomposity is sometimes confused with superficially similar writing defects that aren't self-aggrandizing, such as turgidity and pedantry.

        Content can also express pomposity, but in legal writing, the content is usually self-aggrandizing by implication. Intrusion of the lawyer's unsupported opinions and irrelevant sentiments suggest he is an important person, whose prejudices the court should notice. Often sentimental eruptions are mild and momentary, as when the lawyer describes an adverse occurrence as "unfortunate."

        The most powerful, glaring, and easily recognized expressions of pomposity involve interactions between style and content. By this, I mean more than style selectively applied to particular content, such as verbose self-description. The imperious lawyer, for example, not only tells the court what it must do but tells in a manner conveying compulsion; directing emotional appeals to a judge is pompous. The interaction of style and content communicates an attitude more strongly than style or content alone.

        The following paragraph contains not only abundant legalese but also three pompous expressions combining style and content. Try finding the three.

        Needless to say, we disagree with much that is set forth in the Court of Appeal's Opinion herein. Nevertheless, this Petition for Rehearing is restricted to but a single aspect of the said Opinion. This single aspect is the one which pertains to that ratification of an act of his agent which is submitted to flow from the facts as represented by Mr. Jones to the Superior Court (Opinion: page 4, line 2 to page 5, line 2, page 11, line 7 to page 12, line 19). Specifically, we respectfully submit that the Court of Appeal's views relative to the assumed non-existence of such ratification, are predicated upon a factual assumption which is disclosed by the record to be incorrect. This being so, we submit that the actual facts, revealed by the record, are such as clearly to entitle us to prevail in respect of the ratification theory. (R.W. Benson and J.B. Kessler (1986) Legalese v. Plain English, Loyola Law Review, 20:301.)

        The authors recognize as distinctly pompous: "needless to say," "to but a single aspect," and "clearly to entitle us to prevail." (Id., at p. 310.) "Needless to say" is too snide for general usage, but "clearly to entitle us to prevail" is the norm, a flash point where the legalese defenses against pompous eruptions generally fail. Proclaiming the clear superiority of one's arguments arrogantly tells the court to accept your say-so as authoritative. Finally, "to but a single aspect" is subtler, showing how legalese disguises pomposity but sometimes only partly succeeds. The awkward and redundant "but" is legalese; here, it also expresses actual pomposity by flaunting the lawyer's grace in filing a narrowly focused brief.

        Tuesday, March 23, 2010

        Legalese: Pomposity Ritualized

        1st entry in the Pomposity Series

        We can explain why lawyers' writing is mediocre once we understand that lawyers are professional talkers not writers, but legalese and related terrible writing resist explanation. Folk-theory behavioral economists now seriously propose that legalese usage impresses clients with the lawyer's competence. The economic theory is only plausible for incompetent lawyers; to understand self-defeating legalese, you need depth psychology, but readers beware, depth psychology tells ugly tales.

        Critics of legalese sometimes call it pompous writing, but pomposity is an intruding, self-important, or self-dignified attitude—unlike legalese, which is a writing style. In the "Pink Panther" movies, Inspector Clouseau caricatured pomposity: assigned to parking-meter detail, the inspector bragged about his responsibilities. Self-importance often becomes comic in life, too: an attorney introduced himself in his first appearance by boasting he participated in a California Supreme Court case—which he lost. Inspector Clouseau and the boastful attorney are pompous without legalese's help, and some attorneys are unassuming despite their legalese use. Legalese only sounds pompous.

        My premise is that stylized verbal mannerisms ritualize unwanted character traits common in professions—in law, pomposity. Law is a powerful profession, and power attracts the pompous, who base their self-regard on trappings of high office. Baskers in pomp and ceremony absorb esteem from office: wanting power's semblance, they learn chasing power captures its appearance. Lawyers love power, many first fell in love with its appearance, and those bored or repelled by pomp and ceremony recoil from law practice in ceremonious courts.

        While pomposity is legalese's outward form, lawyers who write "comes now" and "pursuant to" themselves appear conformist rather than self-important: the lawyer using legalese can be pompous without seeming pompous. Legalese, pomposity ritualized, camouflages and acceptably expresses lawyers' natural obnoxious pomposity. The surprising implication is that plain writers, although less pompous than legalese writers, occasionally erupt in spectacular pomposity; since legalese hides lawyers' pomposity, removing the legalese will reveal it, as in the following two examples.

        The first is Bryan Garner. His writing cleansed of legalistic mannerism, Garner's personal mannerisms sully his citations. In "The Winning Brief" Garner offers writing tips supported by "Quotable Quotes." Who does Garner quote? The plurality is from Garner's own works, quoted 28 times. The next highest is an edited appellate-practice manual with 20 quotes, and the decline steepens. Garner should quote himself, but are his quotes really more "quotable" than all other authorities? Fowler scores five Quotable Quotes, Joseph M. Williams none. It's arguable whether disproportionate self-quotes constitutes pomposity, but self-quotation becomes affectation when Garner implies he is pre-eminently quotable.

        The second example is blogging legal-writing teacher Wayne Schiess. Wayne's self-important affectation is presenting professional opinion as personal taste: a list "Random words I dislike"; the sentiment "Sometimes the background is longer than the analysis. I don't like that, and I'm not alone"; and the remonstrance "I don't like this [elegant variation]. It confuses me." The blogging culture tolerates self-centered effusions, but they reveal a kernel of pomposity that affects the writer's style.

        As plain writers, Bryan and Wayne cede the profession's conventional safeguards against everyday pomposity; legalese's ritualized pomposity would suppress or mask both Bryan's and Wayne's personal pomposity. For Bryan, traditional over-citation of all authorities would hide his pompous tendency to over-quote himself. For Wayne, legalese would block his first-person reference and substitute a ritualized pompous form, such as "this writer," which doesn't make the author seem self-important.

        Next entry—Actual Pomposity

        Monday, February 15, 2010

        “And/or” and the (un)lawyerly practice of weaseling

        2nd in the and/or series

        And/or isn't always a weasel word ["a word that makes one's views equivocal, misleading, or confusing"], but even when not, it conveys a weaseling, equivocal style. You might think when an obfuscator uses and/or, he is trying to imply he carries the lighter burden of or when and is required, but that isn't how this obfuscation typically works. The obfuscatory use of and/or usually involves substituting it for or when the conjunction means exclusive or. The purpose isn't to confuse the reader about the conjunction required—for that, a particularly stupid reader would be required—but to distract from the disjuncts' exclusivity, which is for another reason embarrassing to the writer's argument. A simple example, just to convey the idea, is the advice "at the dead end, turn right and/or left," which makes the absurdity obvious to convey the method of misdirection. Directing someone to go right or left at a dead end is uninformative, and "turn right and/or left" denies their exhaustive character, the source of their ridiculousness. The following realistic example of weaseling is taken from a recent court opinion. Judge Armendariz states for the California State Bar Court:
        Respondent knew that 'Bole' did not stand for the proposition he claimed and/or he knew it was not a reliable precedent.
        "Nonprecedential" means the case doesn't deal with the subject claimed; "unreliable" means other cases supersede Bole. Either Respondent knowingly cited a nonprecedential case, in which case whether it was reliably precedential doesn't pertain; or Respondent cited a case he knew was unreliably precedential, in which case the court must concede that the case is colorably precedential. Here, the mutually exclusive character of the disjuncts embarrasses the court's argument because the court would have to know whether the case is nonprecedential or unreliable to credibly charge Respondent with either. The court's weaseling here is sly, as is clear if the reader reviews the incident. The trial court in which Respondent had cited Bole had claimed it stood for something else; the State Bar Court couldn't support the judge's contention but could justify the alternative characterization "unreliable," although the trial court hadn't confronted Respondent with it. The court's weaseling occurs because neither disjunct is satisfied, the and/or serving to muddy readers' understanding of the terms. If Judge Armendariz wrote, "Respondent knew that Bole did not stand for the proposition he claimed or he knew it was not a reliable precedent," she would evoke the reader's criticalness.

        When and/or doesn't directly serve as weaseling's instrument, the construction conveys an attitude tolerant of weaseling which at the least shares with weaseling an indifference to precision, an attitude that cries, "Why admit anything more than I'm required to?" even if the lawyer can avoid admitting an immaterial truth only by equivocation. And/or resembles in this respect other weaseling expressions, such as routine replacement of precise dates in pleadings with "on or around" or "1 to 15 inclusive" for an exhibit list, although 1 to 15 already implies 15's inclusion.

        Although most instances of and/or use are not directly obfuscatory like Judge Armendariz's Bole finding, they help camouflage instances that directly obfuscate. The same court that made the overt obfuscation included the phrase and/or ten times in the 48-page opinion, and the opinion can supply examples for the other types of and/or misuse, which camouflaged the insidious Bole-related misuse.

        The remaining categories are substituting and/or for and substituting it for or. First, and/or for and:

        [B]y repeatedly making speaking objections, gratuitous comments, asking the identical or near identical question to questions that had been asked and/or objections sustained to and arguing in front of both juries…
        The charges assert that Respondent supposedly did all these things repeatedly. Hedging with or doesn't fool anyone and isn't intended to, at least not directly.

        The court substitutes and/or where or is correct in this example:
        He repeatedly badgered, berated, screamed, yelled, and/or raised his tone at witnesses and the court, despite court warnings, admonitions, and orders not to do this and instructions to calm down and act professionally.
        "Yelled and raised his voice" is ludicrously redundant; or suffices.

        Besides camouflaging obfuscatory weaseling, the habitual form of lawyerly weaseling comes from the lawyer's distrust of his intuitions concerning the contextual determination of or's meaning. The rules may be hard to specify, but that doesn't mean the distinction is subtle. Whether the meaning is inclusive or exclusive, seldom will readers doubt the contextually determined meaning of or.

        Friday, February 5, 2010

        The best that can be said for ‘and/or’: It isn't necessarily stupid

        Experts agree legal writers should avoid the and/or construction, but a controversy has arisen over whether using it is merely ill advised or worse, "just plain dumb." The underlying issue concerns the meaning of the disjunctive-conjunction or, and two theories contend. While or's semantic sensitivity to context is unmistakable, some disputants maintain that or's default meaning, its meaning when context is neutral, is inclusive, so a or b is true is itself true if a is true, b, is true, or both are true. In contrast, the simultaneous truth of a and b in an exclusive disjunction falsifies it if a or b is true. If or is an inclusive disjunction, then the and/or construction is "just plain dumb": the unenhanced or already means and/or. Allowing for exceptions, linguist Geoffrey Pullum explains the and/or construction uses overstatement to exaggerate the inclusiveness ordinary or already possesses, but in legal writing, using hyperbole is perhaps just another route to being "just plain dumb."

        Pullum argues by appeal to compelling examples; his most persuasive example is:
        Is Gordon Brown or the Pope in the U.S. today?
        Knowing that the Pope is in the country, one answers "yes," without worrying that Gordon Brown is visiting. The visitors' arbitrary identities seem to preclude contextual influence, allowing or's default meaning to emerge, but context is only weak, not completely absent. Despite the unrelatedness of the two actors, the question's implied or habitual context involves summoning one of the actors, and it's harder to imagine a situation where you would need to know that either Gordon Brown or the Pope but not both is in the U.S.

        If the Gordon Brown example offers Pullum some comfort, contrary examples abound. Here's one from the label on a tomatoes' package supporting the Pullum-rejected exclusive account of or:
        To maintain freshness coated with vegetable, petroleum, beeswax and/or shellac-based wax or resin.
        The label includes both or and and/or because "beeswax or shellac-based wax or resin" reads exclusively. Without the inclusive construction and/or, the label would be inaccurate if the tomatoes' coating contained both ingredients: beeswax and shellac-based wax; or beeswax and resin.

        This example, admittedly, doesn't conclusively show or is exclusive, as context might yet intrude; the predominance of subtle contextual influences brings default meaning itself into question. Rejecting default meaning altogether still rebuts and/or's inherent stupidity: and/or avoids being "just plain dumb" whenever the construction avoids redundancy. The examples don't settle or's meaning, but they rebut a strong inclusive default meaning as Pullum proposes, in which context effects are due only to logic, not to habit.

        Three facts of usage and native-speaker's intuition demonstrate a (weak) presumption favoring an exclusive-disjunction interpretation for or: 1) English dictionaries universally define or as exclusive by describing its conjuncts as "alternatives"; 2) while and/or is indisputably an inclusive disjunction, English has no artificial exclusive disjunctions, as we might expect as compensation if or, unenhanced, were inclusive; and 3) as in elementary mathematical-logic classes, where the teacher must emphasize or's subject-specific inclusive meaning to dissuade students from importing its natural exclusive meaning, speakers' intuitions lead them to interpret or as exclusive.

        Judicious use of and/or isn't stupid and results in no worse than an uneuphonious and slightly confusing product, each because the construction has no counterpart in ordinary speech, but writers of and/or seldom use it judiciously. The next entry will discuss the main source of and/or excess, the writing defect weaseling.

        Tuesday, January 19, 2010

        The tempo of composition

        Manuals instruct writers to work in stages—brainstorming, outlining, writing, and revising—each involving different intellectual operations best kept separate because they elicit mutually interfering mental sets. Notably, the reviser's criticalness defeats the writer' flow, causing writer's block; but the manuals overlook another origin of writer's block in the opposite attitude, which seeks formless flow.

        Writing's iterative stages don't exclude the attitudes each subordinates; a writer attends to form more when revising than writing, but attention to form isn't absent from the writing stage nor should the writer try to totally remove the fabled inner critic when writing a first draft. That effort may be as common a cause of writer's block as the overcritical attitude: banning rather than muffling the sense of form takes the fun out of writing. The inner critic uncurbed makes writing too difficult; the inner critic excessively suppressed makes writing too painful. These affective signals are the writer's guidelines. Following the affective guidelines makes for writing with the greatest formal excellence compatible with keeping pace with thought.

        Intentionally writing badly, even in the first draft, is unpleasant, and it's also impractical. Sloppy first drafts are inefficient because they unnecessarily complicate revision, but much more importantly, they're self-undermining. Working far below their formal capabilities when composing first drafts, writers not only waste a writing-practice opportunity but blunt their skill and acquire bad writing habits if they suspend all concern with their output's form.

        Thursday, January 7, 2010

        Unbalanced Briefs: Their Multifarious Causes

        (Click to expand diagram)

        Unbalanced briefs—briefs expanding on the wrong information—greatly outnumber the balanced. An inventory of causes of unbalance may help lawyers avoid their influence.

        Conventional causes involve following norms and practices that are outdated or irrational. Law is a conventional endeavor because the legal system values stability, and the crevices where some originality is helpful, even necessary, are hard to locate. Lawyers gravitate toward both the habitual and the conformist forms of conventional conduct. Force of habit extends practices originating in law school exams, inclining lawyers to explain obvious micropoints, a practice that once maximized point scores on semi-objective law exams. Conformity, the factor co-ordinate with habit as a source of conventional writing, is following the crowd rather than the past, but it produces the same result, since the legal consensus is based on common tradition. From conformity follows legalese, "storylike facts," and routine incorporation of boilerplate text.

        Substantive causes of unbalanced briefs are where incomprehension or inferential failure makes the writer fail to discern what to emphasize. The lawyer who emphasizes immaterial information may include matters not in contention or contentions not relevant to the issues; both result from not understanding the case and authorities. In emphasizing the uninformative—more common than emphasizing the immaterial—lawyers may lack the legal depth to distinguish the truistic from the novel. A lawyer with little understanding sometimes consoles himself with the thought that his brief's comprehensiveness will win the court's admiration, but if the court gauges a lawyer's understanding, it will take its cue from the lawyer's discrimination of materiality and informativeness.

        Executory causes of unbalanced briefs are practices inexorably leading to unbalanced briefs. The most common executory cause is the practice of retracing the lawyer's own progress in reaching a conclusion. As researchers, lawyers build frameworks supporting their conclusions, but once in possession of a strong conclusion, the underpinnings often require little further explanation. Rather than taking the perspective of the reader, the lawyer recites the course of his personal investigations.

        Compensatory causes of unbalanced briefs occur when the lawyer reflexively hides deficiencies in analysis by overemphasizing other facets or even relying on the information's raw copiousness. Sometimes this happens when the analysis is weak, sometimes when the case itself is. Even without intending to cover up weakness, the lawyer is unable to choose among fundamentally flawed arguments.

        Which cause is the most common? Probably the conventional causes, rooted as they are in law's institutional nature.