How new is cognitive fluency?

Except for the Baker law-review article discussed in the Disputed Issues entry on cognitive disfluency, and the Disputed Issues entry applying cognitive-fluency principles to citation formats, the legal-writing world has paid scant attention to the spate of cognitive-fluency research, which appraises simplicity’s benefits and drawbacks for document reception. Plain-language blogger Cheryl Stephens captures what may be the chary outlook of many legal writers:

Scientific research has expanded so much in the last 20 years that plain language practitioners could not keep up. Money for research is needed to ensure that plain language procedures take advantage of current scientific discoveries. The most significant of these seem to be in the new area of study: cognitive fluency.

Another likely source of neglect is a prevalent belief that cognitive fluency is but a fashionable name for well-known effects. The cognitive-fluency results are new but not hard to understand, yet embodying the results in crisp recommendations is elusive, requiring an understanding of the tension between the writing Virtues Clarity and Concision, as their reciprocal modulation balances fluency and disfluency.

Cognitive fluency can seem like old hat because writers have long appreciated the value of minimizing mental effort for comprehension. Much of the recent findings’ novelty lies in in the advantages of disfluency; but even regarding fluency’s advantages, the research differs from traditional understanding, where avoidance of unnecessary complexity is based on the reader’s limited capacity to maintain multiple thoughts in a conscious state simultaneously, a rationale defining simplicity as well as justifying it. At least as long ago as 1852, when philosopher Herbert Spencer wrote The Philosophy of Style, this limited-capacity concept underpinned the rationale that the less capacity readers must allocate to decoding a communication, the more they can allocate to thinking about it. Readers were also expected to be less likely to misunderstand the simple, since it left spare capacity. The Disputed Issues entry “A rare shortcut to better writing” applied the hoary theory of limited-capacity attention to writing’s production, to explain how faster typing improves it. Science had seemingly vindicated the limited-capacity theory when psychologist George Miller published his finding that humans had a limited short-term memory capacity that varied between five and nine bits of information, as when a tester reads a digit series, one number per second, and few subjects will be able to remember more than nine or less than five. Miller’s finding this consistent limitation of conscious apprehension—Miller’s famous “magic number seven plus or minus two”—ensured that the digit-span test would remain part of standard intelligence testing, despite the low correlation with general intellect.

The past decade’s cognitive psychology retains the concept of working memory, but reconceptualizes it as the person’s skill in directing attention to recently conscious or related thoughts, which, hypothetically, are “activated” but unconscious. The subject’s preconscious thoughts—to use Freud’s term for ideation not conscious but amenable to being made so—are accessed in experiments where the subject is diverted from a memory task by subsequent attention-consuming operations. An easy test of this kind is given during standard psychiatric mental-status examinations, when the tester directs the patient to recall three words, which must be recited at the end of the examination, during which the tester elicits unrelated information. That the important component of working memory isn’t limited by fixed storage implies that we can’t deduce mnemonic efficiency from simplicity (which is to say, from cognitive fluency). Here’s an example—compare (1) and (2):

(1) Sentences can be short. They can also be long. This is a good thing. Lack of variety is wearying. It may drive you to distraction.

(2) It’s a good thing that sentences can be short or long, because lack of variety is wearying and may drive you to distraction. (H/T: Mark Nichol, Daily Writing Tips [for the examples].)

The four-sentence version (1) is simpler, its simple sentences bereft of complicating structural nuance. Speaking theoretically, the complex sentence (2) activates more unconscious ideas, inducing a more powerful working memory, not one limited to the simple sentences’ smaller ambit.

If the clearest prose isn’t the most fluent, if clarity is an optimum on the fluent – disfluent dimension, then the advantages of clarity aren’t those of simplicity. What, then, is the advantage of clarity? The answer might seem self-evident. Obviously, it might be thought, a writer wants to be clear so that he will be understood to mean what he does mean. Clarity means easily understood, the “obvious” thought continues, and the easier it is to understand, the more likely it will be understood. But this is fallacy. What requires less effort to understand is not, in logic or in fact, necessarily clearer, more likely to be understood—not if greater effort is forthcoming. This is the nontraditional conclusion on which cognitive-fluency and working-memory research converge.

Some writing skills can undermine thought. THE UNITY OF LANGUAGE AND THOUGHT. Part 3.

Earlier entries in The Unity of Language and Thought series:

Part 1. Can bad writers be good thinkers?

Part 2. Are good writers good thinkers?

The skills improving persuasiveness contribute unequally to thought; some may even detract: while good writing renders ideas more precise and manipulable, that’s not all it does. Distinguishing the thought-promoting aspects of persuasion prevents beguilement by rhetorical flair.

Ornamentation and convention contribute little if any to thoughtful quality. Ornamentation (which will consume most of our attention) increases a document’s emotional appeal. Euphony, dependent on surface qualities of expression—those which rarely survive translation—falls in this category. Alliteration, assonance, and consonance bear little relation to the quality of thought.

Also playing on affect are the rhetorical figures (excluding simile and metaphor, because they can make an important contribution to Clarity, a Writing Virtue). Law Professor Ward Farnsworth’s new book Farnsworth’s Classical English Rhetoric abundantly illustrates the rhetorical figures, which invoke three types of pattern: repetition of words and phrases; structure, such as parallelism; and dramatic devices, such as rhetorical questions. Repetition serves adornment most single-mindedly; contrast with parallel structure, obligatory when the elements are logically parallel, as in lists and correlated conjuncts.

The distinction between clarifying and purely rhetorical devices is the difference between a simplicity due to efficient compression of information—as accomplished by any good theory—and simplicity for presentation’s sake. An example of the latter is Republican Presidential–candidate Herman Cain’s 9–9–9 tax plan, a proposal chosen for its sheer simplicity, unbolstered by reasons for taxing the three components identically. The difference is between scientific elegance and marketing catchiness.

This is not to say that the rhetorical figures are unimportant in legal writing. To the contrary, instruction is remiss in its neglect of rhetoric, since legal-brief writing, above all, is persuasive. The point is rather that the rhetorical-figures’ persuasiveness is irrational when it rests on the general qualitative correspondence between writing and thought. But factors besides the quality of thought help persuade judges; and judges, all too human, aren’t entirely rational.

This analysis of rhetoric’s somewhat unreasonable role provides another explanation for legalese, based on its function. Insofar as rhetoric is a means to persuasiveness neither reflecting the writer’s quality of thought nor enhancing the reader’s rationality of judgment, a legal system priding itself on procedural egalitarianism may seek to banish it. While identifying rhetoric by black-letter rule might be impossible, the “system” could approximate its goal by fostering a rhetorically unartful legal-writing style. At the same time, this style incorporates, as “substitute gratification,” formulaic rhetoric, such as trite doublets and triplets. (Notice the analogy between how the law staunches pomposity by supplying pompous forms that don’t make the lawyer look pompous and how it suppresses rhetoric by supplying rhetorical forms with an antirhetorical effect.)

Following arbitrary conventions is another major way (after ornamentation) to improve as writer without necessarily improving as thinker. An excellent speller can be an incompetent thinker. The same goes for other arbitrary conventions, such as capitalization and font choice.

Font choice brings us to the second reason for distinguishing those literary aspects enhancing thought from those favoring persuasiveness by other means. Over-valuing one’s own ideas is a pitfall when seeking objectivity and rationality. We’ve seen how writers—by sheer exposure—fall in love with their own style, but exposure also endears their self-produced content to writers’ hearts. Writers striving to think clearly and deeply can benefit from less persuasiveness in their private writing. This is perhaps part of the benefit of handwritten drafts and other formal variations decreasing documents' cognitive fluency, thereby increasing writers' self-criticalness—improving their logical rigor, representational accuracy, and intellectual honesty. Reviewing one’s writing cast in a more disfluent typography, such as 8-point fonts, produces the same effect. Varying the medium—screen or paper—also can contribute to a more critical attitude toward one’s work. These variations benefit private thought for the same reason they sabotage public persuasion.

Richard Posner versus Bryan Garner on citation formats: The verdict of cognitive-fluency research

Builds on “Cognitive disfluency: Simpler isn’t always better.”

The 19th edition of The Bluebook contains more than 500 pages, and lawyers and legal-writing authorities both are divided on how religiously legal writers should follow its dictates. The first issue, dividing many trial attorneys from appellate attorneys, pertains to basics of citing cases and statutes: punctuation, sequencing, capitalization, and statutory-compilation abbreviations. Appellate attorneys usually conform strictly to these rules; trial attorneys deviate, believing that format errors don’t matter provided clarity and consistency are preserved. The second issue, dividing appellate attorneys, involves deviations from The Bluebook that the deviationists believe improve on it, the most common improvement being avoidance of most abbreviations in case names. This is to say, many trial attorneys deviate when they believe it doesn’t matter, whereas the dissenting appellate attorneys deviate because they believe their way is better. I conclude that attorneys best serve their clients when they follow most citation formats authoritative in their jurisdiction, since familiarity produces cognitive fluency, but for the same reason, they should curb excessive complexity, such as The Bluebook’s arcane abbreviations. If you’re keeping score, Garner wins the contest over the first issue—fidelity to the basics; Posner, the second issue—dismissal of arcana.

Posner (whom I declare wrong on the first issue) submits that most citation formatting is invisible to judges, hence irrelevant. (Richard A. Posner, The Bluebook Blues (2011) 120 Yale L. Journal 850, 853.) In fairness to Posner, he doesn’t directly address whether attorneys should follow The Bluebook; he advocates replacing it with less complex, less encompassing, more libertarian rules. The citation guide that approaches Posner’s preference is the Maroonbook, which governs the University of Chicago law review. Posner instructs his clerks with a short memorandum on formats and style. (Id., at p. 854.) I agree with Posner on the systemic question, but I take issue with his argument, which would justify the laxness of many trial attorneys. Posner maintains that it only matters that the format serves the two functions of citations: instantly revealing whether an authority is worth examination and clearly depicting its address. (Id., at p. 852.)

When applied to advice to practitioners, who’re stuck with their jurisdictions’ rules, Posner’s argument founders on scientific findings that “cognitive fluency”—ease of understanding—increases the believability of writings. (“Cognitive disfluency” has its place in persuasion, but the writer’s leeway to be disfluent shouldn’t be squandered on citation, rather devoted to concision.) Since familiarity makes for fluency, writers should mostly follow the official citation formats, familiar to judges. The “invisibility" of these formats is of little moment: many cognitive-fluency effects occur outside the reader’s awareness.

Posner’s view better accords with science when he objects to The Bluebook's needless complexity. Its “hypertrophy” (Posner’s word) includes post-adjudicative signals without legal significance, such as certiori denied in an old case. (Posner, supra at p. 851.) It also includes information supplied by context, such as the designation “dissenting opinion” within a discussion focused on the dissent. The greatest hypertrophy, accounting for much of The Bluebook’s expansion, consists of obscure abbreviations The Bluebook insists that legal writers apply to case names. The case name is often without significance, but scanning an unpronounceable letter series is “cognitively disfluent,” which will unconsciously prejudice the judge against the writer’s position.

Legal-writing authority Alan Dworsky, who maintains that correct formats signal competence, makes the argument for slavish submission to The Bluebook, including its case-name abbreviations:

Citation form is a litmus test of your credibility. Judging a writer's credibility is hard. Readers draw large inferences from small clues, and citation form is one place they look. Like spelling, citation form is either right or wrong. Especially in citations to commonly cited sources like cases and statutes, where a reader is likely to recognize an error, your citation form should be perfect. (Alan L. Dworsky (2d ed. 1992) The Little Book on Legal Writing at p. 75.)

Impliedly supporting strict Bluebooking, Bryan Garner, surprisingly, favors The Bluebook over an alternative—the legal-writing teachers’ ALWD Manual—regarding the Bluebook’s insistence on abbreviated case titles. Garner doesn’t explain the plus he awards, but the economic signaling argument is the strongest one I’ve seen for hyper-ardent Bluebooking. Judges are practical people—as long as the writer doesn’t flout a Formality—but conceivably, some law clerks fresh out of law review may accept rigorous Bluebooking as a competence signal. I expect these signals to be weightless when the writer systematically replaces most abbreviations with full names.

So, except when court rules expressly dictate formats—sometimes even then—brief writers shouldn't slavishly follow citation formats. The official formats should be followed presumptively, since they bear the advantages of expectation and familiarity, but not when disfluent, like The Bluebook’s arcane abbreviations.