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.

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