Monday, January 16, 2012


Explaining a contest award for “Best Writing,” law-technology blogger Dennis Kennedy performed an “actually pompous” speech act: “I like what I like”—the arrogance involved, labeling his personal tastes as “best,” whereas “Best-liked Writing” would be unexceptionable. But “pompous” might be too mild a description if Kennedy thinks that assessing writing style is expressing one’s tastes, which vary less for style than for content.

Liking a writing style usually means enjoying it, and even for legal writing, enjoyability rather accurately measures effectiveness. The measure isn’t perfect. The Writing Virtues, truly criterial, may not line up perfectly with enjoyability; in legal writing, you shouldn’t sacrifice too much Concision for enjoyability’s sake. Although imperfect, the equation between enjoyability and effectiveness is strong to where—if the briefs convey the same information—the better-written brief is usually more enjoyable to read. Comprehension is a motivated activity, and enjoyment is the only incentive a writer can reliably offer.

Dennis Kennedy, then, is correct that his degree of enjoyment measures the writer’s skill. His failing is the common one that’s responsible for why writers are rarely paid what they’re worth: he can’t distinguish his enjoyment of the writing itself from his enjoyment of its content. Readers know when they enjoy, but they usually don’t know what they enjoy. They know they liked an article, but their self-rated enjoyment of the writing is overshadowingly biased by how much they enjoy the content, so that many readers can tell which article is written better only when equally enthused about the contents of each: in persuasion, agreeing with the message; in exposition, finding interest in the information.

Content can be so distracting that reading authors whose substance doesn’t much interest you is a useful exercise, for it lets you focus on the writing style. I read Thomas Hardy for style, although I don’t care much for his romantic tragedies. Good writing, taken pure, is a tonic.

You might think legal writers supplying their work to attorneys have an easy sell, since the attorney readers are interested in their cases and the writers are persuading favorably. Unfortunately for legal writers who are employees or contractors, a trial attorney often most enjoys what’s most strongly favorable to his case. The result is a bias toward shallow analysis and overstatement. Attorneys should have a better opportunity to discern able writers than many other employers of writers have, since attorney interest in the subject matter is a given, but a trial attorney’s sense of enjoyability is often yoked to an exaggerated confidence in the case’s strength.

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