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