Pen or Keyboard?

“Most literary people,” according to legal-writing authority Bryan Garner, have “good hands.” Garner, consequently, advises legal writers to improve their penmanship. You might suspect his advice rests on a cum hoc ergo propter hoc fallacy (mistaking correlation for causation), but a more charitable interpretation is possible: perhaps handwriting is more useful to composition than many suspect, and perhaps practice improves penmanship. This seems the best explanation of the correlation between handwriting quality and literary inclination, leading me to experiment with penning first drafts. (One alternative explanation, that proofreading requires clear penmanship, is less compelling because correction neither compels the efficiency of the cursive form nor affords much practice.) One doubt about this reasoning stems from observing that adult penmanship resists improvement. Physicians, for example, have notoriously poor hands, scribbling almost illegibly, just because they write numerous prescriptions, but that enigma may contain its own answer. To improve a skill, you must strive to do well when practicing it; if you practice an illegible scrawl, you are rewarded by permanently acquiring one.

These speculations motivated me to experiment with handwriting, but before discussing the outcome, some description of procedure. First the pen. Occasional earlier tries at handwriting drafts ended adversely, the big difference, this time, the writing tool. Ballpoints, rollerballs, gel pens, pencils, and steel-nibbed fountain pens had demanded excessive effort. The effect of these inferior alternatives wasn’t small: my first drafts with these instruments were unusable—unrevisable. Fourteen or eighteen karat gold-nibbed pens proved far better. Second, the keyboard; to compare pen and keyboard fairly, the experimenter should choose the best of each. A mechanical-switch keyboard, with its tactile feedback, distracts less than the cheaper membrane variant that usually comes with the computer.

Now the results—or at least, my impressions. Whereas the keyboard is unsurpassed when you know in advance what you shall write, the pen is better for figuring it out, that is, for free writing, a surprising finding, since skilled typing is much faster. What’s desirable in free writing is not only speed, which helps production keep pace with thought, but also unobtrusiveness, to minimize the distraction of physical effort. Cursive writing with a quality pen distracted me less than typing. This is a conclusion from mere personal experiment, but the results do cohere: handwriting improves with practice when the writer strives to draft legibly.

What I don’t know is how widely these results transfer. Greater typing speed might make a difference. I type about 90 words per minute, but I’m aware of much faster typists. (Discovering them on the TypeRacer website was a bit deflating.) If a writer can type fast enough, that may overshadow writing ease. Also, the results might depend on preferences. I find typing less pleasurable than handwriting (but only with a proper pen).

If readers have compared pen and keyboard for early drafting, comments are most welcome.

Cognitive disfluency: Simpler isn't always better

“Simplicity” is the new mantra in endeavors influenced by psychology’s half-decade-old wave of cognitive-fluency research. Understanding why the mantra is an over-simplification should also help counter some simplistic plain-writing advocates.

Cognitive fluency refers to mental ease, including ease of understanding, and it has been found to have striking benefits for at least some forms of communication, such as marketing, where fluent writing and branding have sometimes more than doubled sales. Experiments manipulate the cognitive fluency of written material by using small words, short sentences, familiar concepts, and clear fonts, among other means. The resulting fluency often dramatically increases the message’s acceptability. Not only is it better understood but is also better liked.

As in Julie A. Baker’s application of fluency research, presented in her article “And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate”—which claims cognitive-fluency research best answers legalese’s proponents—appliers of these scientific results have largely overlooked the recent research focus on cognitive disfluency, which also carries striking benefits,. (HT: Lawrence B. Solum, The Legal Theory Blog [Baker essay].) While Baker nods to research favoring disfluency, her argument that cognitive-fluency research argues for plain writing discounts it. The pro-fluency research surprises by the strength of fluency’s effects, including the positive effect of a corporation’s simple name on its stock prices. But the disfluency research has its share of startling results, such as the recommendation—flying in the face of plain-writing dogma—that school texts should be harder to read. Disfluent writing, experimenters report, is read with greater retention. Similarly, cognitive psychologists point out that disfluent company names build greater customer loyalty, despite or because of the customers’ initially reluctant embrace. Disfluent writing engenders reasoning deeper and more abstract and thinking less stereotypical (an explanation for asiatic style’s effectiveness with an unfriendly court).

Fluency’s bipolarity is important for legal writing because it shows that cognitive fluency isn’t identical to or even correlated with the writing Virtue Clarity: fluency isn’t necessarily Virtuous. This interpretation differs from most marketers adopting fluency as their mantra and from Baker, according to whom fluency is virtuous except in narrow circumstances—most notably, summarizing opponent theories. The research favoring some disfluency demonstrates how fluency diverges from Clarity: often, somewhat disfluent writing is clearer than the most fluent—when, for example, Clarity benefits from reader’s construing the topic abstractly. (Construal-level theory is another topic of considerable research in cognitive psychology.) Fluency theory offers to integrate the accounts of truth and beauty, and the analogy between the two implies that, as with beauty, the optimal fluency is a compromise between fluency and disfluency, although where that compromise is found may depend on the subject, such as whether it is best understood when construed abstractly or concretely. A recent explanation of fluency effects maintains that absolute fluency isn’t the relevant factor when fluency enhances understanding or persuasiveness; but rather the relevant factor is fluency relative to readers’ automatic expectations.

The desirability of fluency in that pure form advocated by the marketers and some plain-writing proponents—those who would be flummoxed to discover that students might learn more from harder-to-read textbooks—is rebutted by counter-examples, such as these: If sheer fluency is desirable, why do legal writers struggle to avoid brute repetition? If we are attracted to the fluent, how is it an author like William Faulkner—with his complex, lengthy sentences—is the most effective American fiction writer? The automatic expectations of fluency and disfluency are yet uninventoried, but I conclude long sentences and other complexities create an expectation of disfluency, contrasting with the relative fluency of a well-constructed long sentence, whereas blatant repetition creates an expectation of fluency, offsetting fluency's perception.

When to modulate fluency versus disfluency remains subject to the writer’s intuition, although the psychological research can help refine a writer’s choices. But direct advice on how to modulate fluency versus disfluency follows from the Disputed Issues writing-Virtues framework. To write disfluently for Clarity’s sake, tilt the language toward greater Concision, rather than decrease fluency by arbitrary means, such as unclear typography or convoluted sentences. The advantages of selective disfluency don’t justify legalese, which not only is overly disfluent but also verbose.

See also: Richard Posner versus Bryan Garner on citation formats: The verdict of cognitive-fluency research and How new is cognitive fluency?

Dash or colon: Does the tail wag the dog?

The preceding entry concerned paired em-dashes setting off digressions. A single dash may set off a sentence-terminating digression, but in another usage, the single dash replaces a colon to introduce explanation rather than digression. Which—colon or dash—should writers favor?

Among writing academics are partisans of the colon and those of the dash, as well as neutrals. Often the criterion is register—the colon designated formal, the single dash informal—but formality doesn’t necessarily recommend usage. Legal-writing authority Professor John R. Trimble takes a distinctive position, favoring the dash over conjunctive colons because colons look overly formal (“studied”). Trimble may have over-generalized from the correct observation that the colon is overkill when the matter’s explanatory character is obvious without it, as in this sentence:

There are two parties to a sales contract—buyer and seller.

A colon would induce excessive expectations.

Another warrant for the dash in the last (italicized) example sentence is that emphasis doesn’t fall on the explanatory matter following. The colon emphasizes what follows, a pair of dashes what they enclose, but the single dash emphasizes what precedes, an emphasis writers can exploit to offset the dramatic character of what follows. This effect can trick an observer into concluding that the dash, not the meaning of what follows it, provides terminal emphasis, as here:

Employing a single em dash in a sentence commands your readers' attention, enticing them forward—c'mon, reader, let's go see what'z over here! It can also lend particular force to a terminal phrase—really it will!

Using a non-dramatic termination as paradigm, another authority correctly concluded that the single dash is backward looking, the colon forward looking: “The effect of a colon is to lead the reader forward into the following section. A dash is more like a bucket of cold water flung in the reader's face, jolting them back to the starting point of the sentence.” The perspicuous sample sentence was:

Hamlet's indecisiveness, his arrogance, his suspicion of others, his passionate, brooding, introspective nature—these all contribute to his downfall.

The misperception that the single dash emphasizes the following digression also overgeneralizes from paired dashes’ digressive emphasis. The distinction lies deep in the shape of the punctuation marks, rather than only in convention. Symmetric dashes make the enclosed matter salient, whereas a single dash makes what follows an afterthought: it looks like a tail, and everyone knows the tail doesn’t wag the dog.

A crusade against the dash?

Em-dashes, which emphasize digressive matter, enclose the words constituting the digression. The enclosed matter is syntactically heterogeneous, the dash being an almost unique punctuation mark, similar only to the parenthesis in its indifference to whether it ranges over descriptive modifiers, restrictive modifiers, appositives, compound predicates, propositions lacking syntactic relation to the rest of the sentence, or others. This indifference extends to the punctuation, if any, these sentence components would otherwise take.

Its syntactic indifference is probably why some writers, insecure in their knowledge of grammar, overuse the dash, and anxiety about overuse may be why some other writers are oddly averse to the dash—which, when used without restraint, can’t serve its emphasizing function. Like other vehicles of emphasis, such as bolding and italics, the dash in excess loses meaning and becomes annoyance.

The emphasis the dash imparts isn't so heavy to compel limiting its use to rare occasions, as Noreen Malone advocates in her May 24, 2011 piece in Slate’s column “The Good Word 2011: Language and how we use it.” Malone criticizes writers for substituting the dash for other punctuation marks, but in noting substitution’s prevalence, Malone unwittingly rebuts her own contention, that the dash disrupts sentence flow when interrupting it. If a sentence is unobjectionable using alternate punctuation, then the dash is innocent of fostering disruptive verbiage.

Malone observes that the dash is often used where another punctuation mark wouldn’t offend syntax. In legal writing, these alternatives are usually commas, the dash best serving legal brief writers to avoid the confusion of comma excess. (See Garner, infra.) When dashes replace commas, the matter enclosed is often a descriptive modifier, as are the five example Bryan Garner approves in The Winning Brief. (57: 231 - 233.) Writers constantly interrupt sentence flow by using descriptive modifiers, otherwise set off by commas. Without forgoing descriptive modifiers—distinguished from restrictive modifiers by interrupting sentences—the writer can’t avoid interruptions to sentence flow. Since in the sentences below flow isn't disrupted in a version using commas, the words within the dashes don’t intolerably interrupt sentence flow.

Interruption of sentence flow distinguishes descriptive modifiers—otherwise set off by commas—from restrictive modifiers.

Interruption of sentence flow distinguishes descriptive modifiers, otherwise set off by commas, from restrictive modifiers.

Less often, legal writers use dashes to set off restrictive modifiers, otherwise unpunctuated, or (below) other unpunctuated language

Unlike bans on obscenity—but like bans on speech presenting a clear and present danger of violence (Schenck v. United States (1919) 249 U.S. 47 [affirming criminal penalties for wartime military-draft-repeal agitation intended to encourage obstruction])—bans on frivolous filings are inherently viewpoint discriminatory.

Ordinarily, the conjunction of two introductory phrases need not take punctuation between the conjuncts, but here the length of the second introductory phrase and its parenthetical character recommends the dash, which also—by allowing the citation's placement beside the cited matter—avoids confusion.

Only rarely do legal brief writers use dashes to insert words—whole propositions—that they could not have added without the dash’s aid. The sole concern relevant to sentence flow is using the dash to enclose a whole proposition, with no ordinary syntactic standing within the sentence—a function of the dash that permits grammatically proper run-on sentences.

Judge Richard A. Posner provides an effective example of this usage, where a whole proposition is embedded in a sentence:

The second method, which is the pragmatic, is to determine the purpose of the rule—almost always there is a discernible purpose—and then pick the outcome that will accomplish that purpose. (How Judges Think.)

The potential harm of this form of digression is verbosity. Malone’s examples show that setting off with dashes a proposition that isn't syntactically elemental promotes inserting redundant metadiscourse. You needn’t look beyond the parody in her piece’s title: “The Case—Please Hear Me Out—Against the Em Dash: Modern prose doesn't need any more interruptions—seriously.”

Malone joins Strunk and White in her worries about replacing other punctuation with the dash. Strunk and White advise, “Use a dash only when a more common mark of punctuation seems inadequate.” The advice is off target, as the most serious potential problem of dash usage—other than overuse—occurs when the dash plays accomplice in inserting language that with other punctuation would be ungrammatical.

Are good thinkers good writers? Part 2 of THE UNITY OF LANGUAGE AND THOUGHT

The Unity of Language and Thought Series. Part 2

The last entry upheld the indispensability of writing for thought. We now turn now to the indispensability of high-quality writing for deep thought. 

Taking stock empirically is the most direct approach, but perhaps recognized deep thinkers are good writers because writing promotes their recognition, instead of enhancing their cognition. My strategy is to focus on pairs of deep thinkers whose discoveries or inventions were simultaneous, briefly reviewing some relevant commentary and providing short samples of their styles. Promotional considerations are weaker on knowledge's cusp, this particularly true for the less credited thinker, who, after all, failed in his promotional endeavors. Selection by a predetermined criterion also prevents cherry picking samples.

We’ll look at the scientists responsible for two simultaneous discoveries or inventions: Charles Darwin and Alfred Russel Wallace (theory of organic evolution) and Sir Isaac Newton and Gottfried Leibnitz (the calculus).

Darwin is regarded by scholars as a literary as well as scientific genius.

Darwin really was one of the great natural English prose stylists… This is Darwin's method: an apparently modest allegiance to mere fact gathering abruptly crystallizes into a whole world view. Compares his methods to those of Trollope and George Eliot… (http://tinyurl.com/4s8h2yw.)

Here’s a sample:

It may metaphorically be said that natural selection is daily and hourly scrutinizing, throughout the world, the slightest variations; rejecting those that are bad, preserving and adding up all that are good; silently and insensibly working, whenever and wherever opportunity offers, at the improvement of each organic being in relation to its organic and inorganic conditions of life. We see nothing of these slow changes in progress, until the hand of time has marked the lapse of ages, and then so imperfect is our view into long-past geological ages, that we see only that the forms of life are now different from what they formerly were. (Darwin (1872) The Origin of Species.)

Note, for now, one remarkable feature: the 53-word average sentence length.

The co-discoverer of organic evolution, Alfred Russel Wallace, unlike Charles Darwin, isn’t a household name. Scholars regard Wallace as an extraordinary writer; what he lacked was Darwin’s intellectual courage.

… [Wallace’s] consummate writing style. Joseph Conrad kept Wallace’s classic "The Malay Archipelago" on his night table, drawing on it in several of his own books, most notably "Lord Jim." (http://tinyurl.com/5rwnm5a)

Yet you wonder whether Wallace’s intellectual timidity affected his writing style. A sample:

A belief so general, one would think, must rest on indisputable facts, and be a logical deduction from them. Yet I have come to the conclusion that not only is it very doubtful, but absolutely erroneous; that it not only deviates widely from the truth, but is in almost every particular exactly opposed to it. I believe, in short, that birds do not build their nests by instinct; that man does not construct his dwelling by reason; that birds do change and improve when affected by the same causes that make men do so; and that mankind neither alter nor improve when they exist under conditions similar to those which are almost universal among birds. (Alfred Russel Wallace (1870) Contributions to the Theory of Natural Selection.)

Wallace sounds bolder than Darwin, but his writing isn’t quite as good because he uses writing flaws—excessive use of intensifiers, such as “very doubtful,” “absolutely erroneous,” and “exactly opposed"—to amplify the projected impression of boldness, a boldness that protests too much. For our purpose, the relevant observations are that Wallace is more than a competent writer, but his intellectual shortcomings produce writing flaws.

 
Newton’s writing isn’t celebrated, but his frequently quoted bon mots prove his literary capacity, as below:

I have not as yet been able to discover the reason for these properties of gravity from phenomena, and I do not feign hypotheses. For whatever is not deduced from the phenomena must be called a hypothesis; and hypotheses, whether metaphysical or physical, or based on occult qualities, or mechanical, have no place in experimental philosophy. In this philosophy particular propositions are inferred from the phenomena, and afterwards rendered general by induction. (Isaac Newton (1726). Philosophiae Naturalis Principia Mathematica.)

"I do not feign hypotheses” lives on.

 
Leibnitz was an accomplished writer, whose concision is particularly remarkable—he wrote philosophy treatises in the space of pamphlets. Leibnitz’s work methods demonstrate the attention he paid to perfecting the written expression of his ideas as an integral part of their formation.

Leibniz thought on paper, and he even designed a special carriage which rode more smoothly over ruts and bumps, so that he could write while traveling… The way he wrote was as follows: He used folio paper, which was a little shorter and wider than the modern A3, folded in two to make four sides of foolscap, which is a bit narrower and longer than the modern A4. He wrote in the left-hand half of each side, leaving the right-hand half for corrections and additions, of which there were many. He then gave his almost illegible draft to his copyist, to write out a fair copy - usually beautifully written, with plenty of space between the lines. Leibniz would then correct the copy, and either have it sent off; or, if there were too many corrections, get the copyist to write it out again. (http://tinyurl.com/5rwnm5a.)

Leibnitz and Newton fought over priority for the calculus, but that wasn’t their only disagreement: Leibnitz took a different view of Newton's “feigning hypotheses.”

…we find some quality in a subject, we ought to believe that if we understood the nature of both the subject and the quality we would conceive how the quality could arise from it. So within the order of nature (miracles apart) it is not at God's arbitrary discretion to attach this or that quality haphazardly to substances. He will never give them any which are not natural to them, that is, which cannot arise from their nature as explicable modifications. So we may take it that matter will not naturally possess the attractive power referred to above, and that it will not of itself move in a curved path, because it is impossible to conceive how this could happen—that is, to explain it mechanically—whereas what is natural must be such as could become distinctly conceivable by anyone admitted into the secrets of things. (Gottfried Leibnitz (1996) New Essays on Human Understanding, Cambridge University Press.)

In modern terms, Newton and Leibnitz were debating physical action at a distance, posited by Newton’s theory of gravity. History’s verdict regarding this dispute—expressed in Einstein’s general relativity— is that Leibnitz’s positions were true, but Newton’s genius consisted in apprehending the most scientifically useful framework, ignoring even its logical incoherence. Perhaps these tendencies are evident in their writing styles: Newton’s attic and direct. Leibnitz’s writing does an excellent job expressing a dry philosophical question compellingly, bearing in mind he was espousing principles that were only vaguely understood. 

Objectivity demands attention to adverse evidence, and Socrates, who left no written works, stands out. Whether some sophisticated oral methods can play writing’s role in thought deserves exploration, but the reason for Socrates’s barrenness ambiguates its significance. As a matter of principle, Socrates opposed permanent records of ideas, denouncing them as vehicles for dogmatism. Consequently, we don’t know he was a bad writer: he eschewed writing as a means of communication rather than of thought.

Next entry will analyze the writing processes important for thought.

Can bad writers be good thinkers? Part 1 of THE UNITY OF LANGUAGE AND THOUGHT

The Unity of Language and Thought Series. Part 1.

According to a common view, “good enough” writing—a modicum of quality—suffices. If persuasiveness of argument and lucidity of expression are independent factors, a superior product is resource-wasting overkill. Contesting the common view is the doctrine asserting language and thought’s unity. I owe Bryan Garner the idea of applying the doctrine to legal writing:

In law, the quality of writing matters. Good writing can win cases, and bad writing can lose them. To some, this notion is self-evident. But to others it's dubious at best.

What explains these markedly divergent views? Ultimately, the disagreement hinges on the extent to which a given lawyer understands that language molds every human thought. Language is embedded in the very way in which you perceive the world. Thus, it's impossible for a judge to focus exclusively on the merits of a case without being affected by the language used to express those merits. (B. Garner, The Winning Brief.)

The concept of the unity of language and thought itself I owe to the great Russian psychologist Lev Vygotsky:

Speech [read writing] does not merely serve as the expression of developed thought. Thought is restructured as it is transformed into speech. It is not expressed but completed in the word. (L. Vygotsky (1986) Thought and Language.)

Succinctly, “Thought is not expressed by language but takes place in it.” (Ibid.)

Vygotsky’s psychology emphasizes that we think by means of “inner speech”; hence, the terms conveying an argument co-determine its construal and effectiveness. The linguistic character of thought is the essential reason the quality of expression matters.

Anyone who denies that thought and language co-determine a brief’s persuasiveness should find an occupation not involving writing briefs, but the implications of the unity of thought and language go further than this truism about persuasiveness. The unity applies, I claim, not only to writing’s reception but also to its production. The unity of language and thought implies:

1) Good writing requires deep thought;

2) Deep thought requires good writing.

To personalize, good writers are good thinkers and good thinkers are good writers.

Point 1 is less contentious than point 2: vacuous thoughts don’t challenge a writer’s skill; Point 1 is also less interesting: a low order of intellectual depth provides ample space to demonstrate incompetence (hence, competence by comparison). In principle, intellectual shallowness limits expressive power, but in practice it does so weakly.

Point 2, on the other hand, makes a strong, contentious claim. It precludes that popular construct the "homespun philosopher" and rejects the populist tenet that many great thinkers go unrecognized because they're inarticulate.But to avoid unwarranted contention, we must be precise about the meanings of both "thought" and "good": Point 2 doesn't claim that the human intellect rests entirely on literary skill. Only deep thought—coherent multistep reasoning with abstract concepts—requires written expression to flourish. To take a familiar example, a trial attorney who is an incompetent writer but is quick on his feet, alert to testimonial incongruities, and shrewd in negotiation need function only in oral mode. To claim the attorney is a poor thinker is at best ambiguous: such attorneys are, in any event, reasonably intelligent. The claim isn’t that bad writers are stupid.

Nor is "good thinking" good in the sense of being correct. Deep thinking constructs theories that are capable of being true about complex matters involving abstractions. A usage point helps clarify. When shallow thinking is applied to complex abstract matters, we call the result stupid. When deep thinking about the same matters goes very wrong, we instead call it crazy, and crazy thought retains at least the possibility of accuracy: you can’t reasonably reject it without comprehension, whereas shallowness disqualifies thought concerning abstract topics. Good writing doesn’t necessarily deserve consideration, but on such topics, bad writing deserves disregard. Properly understood, the claim—contentious enough as it is—asserts that deep thinkers must be capable writers because writing is part of the thinking process.

With this clarification, the claim still conflicts with the received view, but a certain universal writing experience refutes the received view by demonstrating that writing quality sets a limit on thought quality. The experience is that of arriving at profound insights during writing’s course. We can’t devise a complete plan predicting our conclusions; writing lives its own life and decides its own destiny. Unforeseeable insight proves that thought without written expression would be impoverished.

Intellectual discovery continues to surprise experienced writers —revealing how counter-intuitive is the dependence of thought on writing—despite their coming to accept its occurrence intellectually. But though suggestive, unforeseen discovery doesn’t quite prove the relationship between the quality of writing and the quality of thought. A gap remains between the proof that deep thought requires writing and the conclusion that it requires high-quality writing. In the next entry, I intend to close the gap.

Next entry: Good thinkers are good writers.

Why teachers write badly

Why do we demand excellent writing from practicing lawyers, while we’re satisfied with writing teachers’ mediocre writing? The anomaly raises additional questions. Does it matter if teachers can’t write? If it does, why does no one care? My answers are that it matters, and law schools and their students don’t care because they’re confused about how teaching relates to doing. The conventional wisdom is that teachers needn’t write particularly well to teach fundamentals, but skilled writers obtain better pedagogical results by motivating student improvement.

Legal-writing education needs good writers, who can show rather than tell their students that writing makes a difference, a conclusion few students reach because teachers unable to demonstrate that writing matters limit their horizons. Only large advantages in skill produce noticeably better courtroom results; cosmetic changes, such as eliminating legalese’s remnants, don’t differentiate winning from losing briefs: judges report they receive no assistance from the great majority of briefs. Writing teachers are modest in their claims, but modest writing improvements aren’t outcome determining, as teachers admit when they excuse compromises on quality to satisfy bosses’ demands. Regardless of whether improvements achieved in law school cross the threshold for real-world effectiveness, it’s more important that students, afterward, continue to strive for improvement. Writing teachers, themselves, must cross the effectiveness threshold to convey the significance of writing quality.

Another aspect of writing pedagogy is that students must not only grasp that writing matters but also believe that following the teacher’s suggestions helps. A student has few grounds to think a teacher who doesn’t write particularly well can provide useful advice: if teachers knew how to do it, wouldn’t they? The students, moreover, have a point.

So, what must law schools be thinking? By analogy to the qualifications of professors—not necessarily gifted in applying doctrine—schools justify hiring writing teachers who aren’t writers. Superficially, hiring writing teachers who can’t write seems analogous to hiring doctrinal professors who can’t litigate, but the analogy fails because the circumstances differ. The professors don’t teach litigation, and they are experts at what they do teach, legal analysis. Clinical courses, not doctrinal courses, concern applying doctrinal analysis to litigation, and those courses’ teachers are excellent litigators.

You wouldn’t want a professor shaky on legal analysis for a doctrinal class; you wouldn’t want a teacher lacking trial skills for a clinical class; and you shouldn’t settle for teacher who isn’t an excellent writer for a writing class.

Issue statements: Whether to use "whether"

Should legal briefs state issues as full-sentence questions or sentence fragments beginning with whether? Many authorities reject whether as ungrammatical, unwieldy, and stilted, and whereas Schiess and Einhorn advocate adapting form to purpose, they reject adaptations using whether. (Schiess, W. & Einhorn, E. “Issue statements —different kinds for different documents.” HT: The (New) Legal Writer.) Over-particularization in their otherwise useful survey obscures the main trend, which affords whether a role and explains the steadfastness of some excellent lawyers: whether is effective at litigation’s highest levels, and the form’s prestige generalizes. Schiess and Einhorn’s advice, depicted in the table, considers three formal variables: abstraction versus specificity, single sentences versus multiple sentences, and issue statement versus summary statement.

Reducing the table to a formula further condenses the information.

To the extent law, not fact, drives the issue, issue statements should be abstract and terse.

Facts in law-driven issue statements distract judges. (For contrary advice, see Garner, B. The Winning Brief [“the better approach is typically to weave concrete facts into your issue statements so that you tell a story in miniature, with names and all that”].) Expressing abstract legal issues in multiple sentences serves only to accommodate factual prolixity.

The criticisms of whether, when they have any merit, don’t apply to short, abstract statements. Whether’s main defect, the concomitant limitation to sentence fragments, applies only to issues involving facts. Another unsound criticism invokes a hyper-grammatical rule—no longer infecting legal writing—to avoid sentence fragments. As to stiltedness, whether starts an issue statement naturally: you wouldn’t answer the question “what’s the issue?” with another question. In resolving issues the court answers questions, but question and issue are distinct forms; avoid the question form if the predominance of law-driven issues allows. Supporting contrary advice, whether’s strongest critic Bryan Garner substantiates his disdain with the following multi-sentence issue statement.

The taxpayer owned coupon bonds. Several months before maturity of the interest coupons he detached them and gave them to his son, retaining the bonds themselves. Is he relieved of income tax with respect to the interest on the coupons?"

Garner’s issue presents a pure question of law, concisely stated as:

Whether interest on coupon bonds is subject to income tax following the taxpayer’s transfer of the coupons.

The date of the coupons' transfer or the identities of transferor and recipient is irrelevant, but after cutting Garner’s surplusage, you still might stick with the question format,

Is interest on coupon bonds subject to income tax after the taxpayer transfers the coupons?

Necessitating the extra mental operation, translating the question form into a proper issue, diminishes clarity, outweighing the question-form’s marginally greater concision

Formality. Part 4. The celebration of informality and the unsettled status of contractions

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“Plain writing” means Informal register. As the Chart depicts, Informal is the better register insofar as Personal address (yellow) is direct and Hyper-grammatical rules (green) are disregarded; but Formal is better insofar as Succinctness (blue) is uncompromised and Universality (gray) is preferred. This assessment, it’s crucial to understand, brackets off register’s norms (Column 6): reducing or widening the gap between the (otherwise) effective and the normative is the measure of a trend’s help or harm.

Twice, the plain-writing trend beneficially shifted the prevailing legal register. First, it persuaded practically everyone that the Ceremonial register is ineffective. Second—its greatest triumph—it dethroned the Formal register’s Hyper-grammatical rules, and allied with the descriptive linguists, made laughing stock of pseudo-grammatical Formalities, such as avoiding conjunctions at the beginning of sentences or prepositions at their end.

But also, plain writing detrimentally shifted the prevailing register, favoring Naturalness over Succinctness to diminish written language’s unique expressive power. Some examples. Bryan Garner advises legal writers to average no more than 20 words per sentence; Wayne Schiess advocates (and writes) very short paragraphs; and plain-language exponents in general write loosely, with abundant phrasal verbs.

A collateral detriment comprises the insouciant breaches encouraged by plain-writing exponents, who tend to view brief writing from a writer’s standpoint more than a lawyer’s and fail to curb a writer’s natural resentment of stymying conventions. The best example is Bryan Garner’s suggestion to replace inline citation with footnotes, breaching the powerful status Formality by compelling the judge to change his work habits, an innovation worse than a distance-Formality breach of register. The suggested practice is distracting and inefficient, and it affronts the judge to steal expressive ease by imposing on him. Using an unorthodox citation convention assumes a risk whose harmfulness writers— convinced they’re improving their briefs’ persuasiveness, while really sabotaging it by angering the judge—might never discover.

Breaching mere distance Formalities by using the wrong register isn’t innocuous, and the contraction is the worst distance-Formality breach plain writers urge on us. (I was guilty of dispensing that bad advice when I analyzed the status Formality and excluded the distance Formalities.) Notice in the Chart that contraction avoidance is a Hyper-grammatical rule (green), but anomalously, its dominant register (column 6) is Formal. Avoiding contractions is the very strongest Hyper-grammatical rule: more than any other Informality, contractions smack of conversationality, and introducing them is alienating. The judge won’t think you’re uppity, as when you force him to adjust to different formats, but as Justice Scalia once remarked, he’ll infer you’re trying to be chummy.

A natural question is why the plain-writing trend not only challenges inappropriate Formalities but also repudiates the appropriate, especially by de-emphasizing Succinctness. After law departments commodified legal-writing instruction, plain writing’s teachability fortified it as the main reformist approach to brief writing. Meanwhile, commodification devalues writing teachers, isolating them and interesting them in reducing social distance. Writing teachers are an out-group in law, and the plain-writing trend, for good and ill, expresses their interest in abolishing the markers of social distance.