Saturday, October 8, 2011

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 Manualregarding 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.

No comments:

Post a Comment