Sunday, May 13, 2012

The profession's disdain for "fine writing": The sociology

More than two centuries ago, bench and bar were already contemptuous of “fine writing.” When James Boswell filed a brief—particularly well written because Samuel Johnson assisted—the judge advised Boswell that excellent writing was wasted effort. The profession’s literary philistinism has been ignored by commentators on the sorry state of legal writing; only a judge as outspoken as Richard A. Posner is prepared to describe the profession’s attitude:
Many judges and lawyers are disdainful of fine writing. They think it unprofessional, "literary," affected, overrefined. (R.A. Posner, Judges' writing styles (And do they matter?) (1995) 62 U. Chi. L. Rev. 1421.)
Previously, I’ve invoked the distinct talents of talkers to explain the dearth of writers in a talking profession. The distinction reaches still deeper. Lawyers aspire to and admire oral eloquence, yet the most that’s usually hoped for legal writing is that it be plain. Also, while lawyers value eloquence in addressing juries, eloquence is rarely encountered in oral argument. Although more competent in speech—even before judges—than in writing, lawyers don’t diligently rehearse oral arguments to courts as they do statements to juries. 

The vast difference in expectations under law and in legal culture between judge and jury explains the different assumptions about the importance of stylistic persuasiveness. The difference is expressed legally in the presumption that the judge isn’t influenced by prejudicial information, a presumption necessitated by judges’ gateway function but a presumption that appears increasingly distant from reality.

In the popular imagination and even in the beliefs of many trial attorneys, the judge is a mere umpire—so the attorney needs only state the facts and cite the law. Any surplus persuasiveness is illegitimate—it shouldn’t work and is presumed and assumed not to work. The penchant of popular consciousness and even jurisprudence to deny the power of judges also causes lawyers and courts to deny the power of style; for if style is persuasive, judges’ decisions manifest discretion—which, of course, they often do.

The obscurity, prolixity, and cacophony of legalese ruin it for persuasion. In a sociological sense, this is the very point of legalese: it prevents one side from gaining an unfair advantage through rhetoric. Rhetoric is part of the persuasion process, and the myth of the powerless judiciary tacitly denies there’s any proper persuasive work to be done when lawyers argue the law to judges. In a perverse sense, legalese is democratic: it levels the field between represented parties who use it.

This part of the explanation of legalese—it may not be the most important part—is both encouraging and discouraging for legal writers. We may be discouraged that the profession devalues our craft. Fortunately, judges aren’t experts on what really persuades them: Boswell should have disregarded his judge’s advice. Among other biases, the judges themselves are prone to uphold the myth of the powerless judiciary. What can encourage some legal-brief writers is that the profession’s disdain for fine writing means excellent writing will be rare, hence exceptionally persuasive, when it competes against the standard legal fare.

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