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Conventional causes involve following norms and practices that are outdated or irrational.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.

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