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;
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.
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.
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.
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.
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.
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.
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.
- Use a ragged-right margin for word-processed text.
- Never use more than a single space between sentences.
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.
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.
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.
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.
[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.
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.
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.
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.
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.
(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.