Sunday, February 26, 2012

Construal-level theory: Matching linguistic register to the case's granularity

“Brutus stabs Caesar,” wrote Shakespeare, but it would have been as accurate, if less apt, to say Brutus murders Caesar, kills Caesar, or attacks Caesar. Those descriptions are more abstract, global, high-level, general, or far. Alternately, Shakespeare could have described Brutus as plunging a dagger deep into Caesar’s chest. That description, compared to the original, is concrete, local, low-level, specific, or near. These distinctions correspond to low versus high granularity of the information they convey, and construal-level theory from social psychology finds the bearers of different mindsets—each receptive to information elicited in one or the other mode, denominated far and near—are prone to continued use of the same mindset in approaching new information. While Shakespeare could have described the stabbing at different granularities, they convey different information and focus on different features of the information.

Similarly, different legal cases or legal issues naturally present as relatively far or near. If Julius Caesar were a murder case, a defense attorney mounting an insanity defense for Brutus would rely on the far mode because the focus would be on abstractions regarding intent and knowledge, whereas a prosecutor would benefit more if the case elicits the near mode to focus on the brutal details. By varying the level of deep formality, as described in the theory of two Belgian linguists, the brief writer can dispose a judge to use the far mode or the near mode because formal is far and informal is near.

Construal-level theory: Thinking  far or near

First, the basics of construal-level theory. (See Trope and Liberman, Construal-Level Theory of Psychological Distance (2010) 117 Psychological Review 440.) When you look at an object in the distance and look at the same object nearby, you focus on different features. Distal information is high-level, global, central, and unchanging, whereas local information is low-level, detailed, incidental, and changing. Construal-level theorists term distal information far and local information near, and they extend these categories broadly to embrace psychological distance. Dimensions other than physical distance can be conceived as psychological distance by analogy, and these other dimensions invoke mindsets similar to those physical distance invokes.

Among the dimensions expressing psychological distance are distance in time (from the present), social distance, and logical distance (hypotheticality). High-level information, in general, invokes the far mode: theories, general trends, desirability (rather than feasibility), the future, and pros (versus cons). Low-level information invokes the near mode: irregular developments, special task and situational characteristics, feasibility, and cons.

This description of construal-level theory is abstract (far), but now, by applying it to brief writing, I’ll bring it nearer. The key to this application is that the main dimension differentiating writing styles, degree of formality, influences the reader’s construal level: informal is near and formal is far. Formality will get further sustained attention in this entry, but for now, it’s enough to apply the maxim from the formality series: to write informally, imitate speech. Writing invokes the far mode because, unlike speech, it is typically used to communicate over distances of space and time. Construal-level theory predicts that informality, on the other hand, elicits a near, low-level information mindset. By eliciting the near mode, somewhat informal writing will render the court more receptive to information that elicits the near mode, with its concrete style, focusing on low-level information. The chart below depicts the association between types of argument and optimal construal level.
Arguments pro are far and arguments con are near, so the level of formality should be lower in a respondent’s brief than in petitioner’s brief and lower in an opposition than a motion or a reply brief. Pro arguments are far because change—due to both its future orientation and hypotheticality—is more psychologically distant than the status quo.

The best level of formality also depends on whether you are arguing based on the law or the facts, the law being far and the facts near. Facts are local, contingent, and changing, like an object shifting when viewed from nearby, whereas the law is global, of the essence, and mostly unchanging.

If your arguments are based on law, a further distinction applies: black-letter law is near and public policy is far. The meaning of black-letter law is usually apparent from a textual analysis, a detail-oriented analysis compared with the vaguer, abstract considerations in assessing public policy.

Deep formality and informality: Writing  far or near

A theory of deep and surface formality from linguistics defines the tactic of adjusting style to case granularity. (See F. Heylighten & Jean-Marc Dewaele Formality of Language: definition, measurement and behavioral determinants (1999).) Formality here doesn’t mean using legalese, and informality doesn’t mean writing colloquially. This is important to note because most of the discussion of formality by commentators on legal writing, including that contained in Disputed Issues, concerns surface formality, but to vary the construal level of a brief, writers should change its deep formality. Surface formality uses outmoded forms for the sake of convention and is the relevant topic for discussing the formalities, rules that protect the judge’s sense of social status or distance. The main thesis of these linguists’ theory of deep and surface formality is that deep formality centers on avoiding ambiguity by minimizing context-dependence. Communication is formal in this deep sense when it is explicit and definite, rather than understood tacitly.

This further clarifies why degree of formality influences the reader’s construal level. Informal writing is similar to oral communication in its dependence on a shared context, including contemporaneous observations and common memories, which informal communicators use to disambiguate expressions.

A chart in the formality series partitions the formal register into four practices: indirect personal reference, hyper-grammatical rules, succinctness over naturalness, and expressive universality. A pattern was apparent but remained unexplained: some kinds of formality help the brief writer achieve clarity and concision, but other kinds of formality defeat writers’ purposes.

The linguists’ theory of deep and surface formality explains the pattern. Indirect personal reference and hypergrammatical rules are surface formality, involving what the linguists call “frozen forms”—best disregarded except when rules of formality dictate. I recommended the informal register with respect to those two groups of practices. Another set of practices, which involve an artificial naturalness, lacking succinctness, can probably be best understood as the informal analog of surface formality, being a stylized, often folksy mimicry of oral communication, forming the matrix of the new obfuscation, “plain-talk writing.” 

Brief writers should shun this kind of informality, and I recommended the formal register for this practice. Finally, I also recommended the formal register for expressive universality, which from the perspective of enforcing formalities as conventions is the least important aspect of formality to conform to but is the most important for calibrating the level of formality in briefs. Expressive universality, only marginally important for conventional surface formality, is deep formality’s essence.

Adjusting deep formality to elicit a far or near mindset

Judge Richard A. Posner’s essay on pure and impure styles is a somewhat helpful guide to varying a brief’s level of deep formality to elicit the most receptive mindset in the judge. (See R. A. Posner, Judges' Writing Styles (And Do They Matter?) (1995) 62 U. Chi. L. Rev. 1421.) Posner’s distinction between the pure style (formal, far) and the impure style (informal, near) classifies judicial opinions rather than briefs, so many of the devices Posner’s pure-style jurists employ involve surface formality, used to impress and even obfuscate—tactics that would violate status formalities if an attorney used them. The pure style, inasmuch as it manifests deep formality, is characterized by a systematic approach to analysis, where the legal issues are presented in their theoretical context. Judge Benjamin Cardozo was an example of a pure stylist. In Palsgraf v. Long Island Railroad, dealing with proximate cause, Cardozo considered the theoretical question of whether a distal cause perdures when a proximate cause intervenes. An impure legal opinion would concern itself more narrowly with resolving the issue in practical terms. Thus, Judge Harold Friendly, a practitioner of a mixed style according to Posner, when trying a case where a definition of proximate cause would have helped, avoided a general approach, writing, “How much ink would have been saved over the years if the Court of Appeals had reversed Mrs. Palsgraf’s judgment on the basis that there was no evidence of negligence at all.” (In re Kinsman Transit Co. (2d Cir. 1964) 338 F.2d 708, 721, note 5.)

Judge Friendly was more informal than Judge Cardozo, invoking a near construal level, because his opinion scrutinized the particulars of the case record. To induce a near mindset, focus on resolving the issues rather than setting them in legal context; focus on the factual context rather than the theoretical context. To induce a far mindset, be comprehensive and make your brief self-sufficient.

Some writers contend that every brief should be completely understandable without relying on the record or the judge's case knowledge. This is good advice for inducing a far mindset, but if your case argument is fact-based and you represent a respondent, a more informal style, which aims at setting out only what the judge needs to learn, can be more persuasive.