Plain-talk writing countersignals power

Since unexplained consensus is a form of evidence, an important question is this: why have the opponents of legalese converged on plain-talk writing? (If you suspect I overstate the dominance of plain-talk, for an example see a recent piece by legal-writing author Mark Herrmann, who urges legal-brief writers to write like best-selling authors and average at most 15 words per sentence: “Care to write in a style that encourages people to read? You could do worse than to model your writing on the work of bestselling authors, couldn’t you?”) The explanation I propose for the dominant two camps is that legalese signals power and plain-talk writing countersignals greater power.

Signaling theory was a previous topic. Agents signal when they demonstrate possession of a valued trait by incurring costs that would deter those with lesser endowments; they countersignal when their audiences are informed through other sources that the agent is at least middling on the valued trait, so abstaining-from-signaling signals not needing to signal.

Feltovich,Harbaugh, and To list examples of signaling and countersignaling:

The nouveau riche flaunt their wealth, but the old rich scorn such gauche displays. Minor officials prove their status with petty displays of authority, while the truly powerful show their strength through gestures of magnanimity. People of average education show off the studied regularity of their script, but the well-educated often scribble illegibly. Mediocre students answer a teacher’s easy questions, but the best students are embarrassed to prove their knowledge of trivial points. Acquaintances show their good intentions by politely ignoring one’s flaws, while close friends show intimacy by teasingly highlighting them. People of moderate ability seek formal credentials to impress employers and society, but the talented often downplay their credentials even if they have bothered to obtain them. A person of average reputation defensively refutes accusations against his character, while a highly respected person finds it demeaning to dignify accusations with a response.

To clarify the countersignaling concept still further, it will help to illustrate its application. A political scientist footnotes: “I do not claim to have mastered these highly technical papers. Their results, however, cannot be more robust than their premises, and it is the latter which I criticized in the text.” (Jon Elster, The cement of society: A study in social order (1989).)

Elster’s comment is slightly surprising because one common intellectual signal in academia is mastery of an arcane formalism. To signal intellect this way, an author should demonstrate understanding, not gratuitously admit partial incomprehension attributable to the author’s insufficient learning. Elster does much to demonstrate mastery of a huge amount of analysis, and because of that and the typical reader’s knowledge of his research record, not only can afford to honestly admit his lack of comprehension but actually comes off “looking better” for his frank admission. (You might think an alternative explanation is that Elster is intellectually honest; this I don’t doubt, but signaling theory may reduce intellectual honesty to self-promotion by countersignaling—or forming advantageous countersignalling habits.)

The signaling/countersignaling framework illuminates the opposition (and false dilemma) between legalese and plain-talk writing: legalese is a form of signaling, and plain-talk writing of countersignaling.

I’ve previously contended that using legalese signals power, and a recent social-psychology study implicates the use of abstraction. (C.J. Wakslak, P.K. Smith, and A. Han, Using abstract language signals power, JPSP, 107(1) (July 2014) [“Abstract language use appears to affect perceived power because it seems to reflect both a willingness to judge and a general style of abstract thinking.”] (HT: Overcoming Bias.) Hyper-abstract (truly, pseudo-abstract) language is a defining characteristic of legalese.

When an attorney’s power is incontestable, whether due to the quality of work product or extent of connections and affiliations, it not only becomes unnecessary to incur the costs of an opaque writing style, but by writing plainly, some attorneys can signal that they are above needing to, because avoiding the obtrusive signal of power can, with additional information, come to signal greater power.

Although the costs of countersignaling are less than those of signaling, they’re still onerous. To maintain the clearest discriminability from the middle-status legalese writers, plain writers will avoid useful abstraction (and its paraphernalia, such as varied sentence length). The same signaling logic applies to other versions of pseudo-abstract writing, such as bureaucratese and academese, in other realms where signaling of power is important and a higher-status plain-talk-writing trend supervenes.