“Good enough” consumerism and the myth of imperfectibility

Bloggers' reactions to "good enough" consumerism reveal the problems that keep legal writing inferior. Good-enough consumerism is fascinated by qualitative changes in our tastes attendant on changes of mere degree in production and delivery efficiencies. The paradigm is the rise of the MP3 recording medium, which allows high compression ratios but reverts fidelity to the cassette-tape era.

Professionals espousing work-product quality could resent comparisons with least-common-denominator recording media, but the predominant reaction among bloggers isn't to challenge but to avoid, to find the legal loophole that escapes the good-enough standard's obvious implications. Carolyn Elefant interprets the good-enough concept by denying its obvious meaning, that consumers evaluate services with an eye to convenience and economy, to the derogation of traditional indicia of quality. "[M]y take away from the Wired article isn't that cheap and simple means compromising standards." Compromised standards are exactly what the Wired article means because it says so: "Having it here and now is more important than having it perfect." Another blogger, representing the legal-writing field itself, denies good-enough consumerism's implications instead of its premise. Wayne Schiess acknowledges firms crowd lawyers' time for producing quality work, and he suggests the solution isn't to settle for producing bad work but to strive for excellence, despite the obstacles precluding its achievement. Wayne's sophistic position changes the argument's subject. Where the problem is that legal writers have too little time to produce excellent work, Wayne offers no direct advice on what they should produce; instead, he addresses what they should strive to produce.

The whole discussion lacks analysis of when the "good enough" paradigm applies; when is the correct question to ask "Is it good enough?"; when, "Is it as good as I can make it?" Two factors decide when "good enough" is the correct standard: 1) the perfectibility of the project and 2) the estimability of the "good enough" level. Which standard is rational reduces to whether we can attain relative perfection and whether we can know when a product is good enough. The good-enough standard is unsuitable for legal writing because no one knows what's good enough. Estimates under such uncertainty will run low because of the overcompensation bias, as estimating what's good enough is analogous to compensating for a perfectionistic bias; when we consciously try to temper our performance to compensate for a bias, we overshoot. The high degree of uncertainty regarding adequate quality argues for a relative-perfection standard governing legal-writing projects such as briefs—provided relative perfection is attainable. Proponents of "good-enough" consumerism pronounce, "The perfect is the enemy of the good," but when perfection and reasonable quality war, perfection's unattainability is the casus belli. While no one attains absolute perfection in producing complex work, lawyers unthinkingly apply the conclusion to relative perfection: the best efforts standard.

The myth of relative perfection's unattainability is the work-ethic's neurotic hypertrophy: professionals perennially atone for short-changing customers under the supposedly never-achievable best-efforts standard in the guilty pseudo-knowledge that more, hence better, is always possible; the curses of excessive citation, verbosity, and issue proliferation reinforce the myth of relative imperfectibility. If more always means better, relative imperfectibility would be justified, but on most projects, the point comes when writing more lowers quality. This point of relative perfection isn't necessarily good, but in legal projects, it's the most writers can offer and the least they should.

Actual Pomposity

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2^nd entry in the Pomposity Series. For best understanding, read Legalese: Pomposity Ritualized first.

Since legalese helps lawyers avoid pompous eruptions, many lawyers will part with legalese, if ever, only if they first overcome their actual pomposity. Recognizing actual pomposity is the first step. Lawyers express actual pomposity—real self-important conceit, distinguished from its legalese camouflage—by style, content, and the interaction of style and content.

Style expresses pomposity when it inflates the tone to signal that the author thinks himself worthy of equally inflated public regard or when it expands the space that signals of high self-regard occupy. The most subtle stylistic type of pomposity is affectation, which offhandedly devotes unnecessary space to the writer, as when, instead of just stating his position directly, the writer dwells on himself by writing, "I am inclined to believe…" Stylistic pomposity is sometimes confused with superficially similar writing defects that aren't self-aggrandizing, such as turgidity and pedantry.

Content can also express pomposity, but in legal writing, the content is usually self-aggrandizing by implication. Intrusion of the lawyer's unsupported opinions and irrelevant sentiments suggest he is an important person, whose prejudices the court should notice. Often sentimental eruptions are mild and momentary, as when the lawyer describes an adverse occurrence as "unfortunate."

The most powerful, glaring, and easily recognized expressions of pomposity involve interactions between style and content. By this, I mean more than style selectively applied to particular content, such as verbose self-description. The imperious lawyer, for example, not only tells the court what it must do but tells in a manner conveying compulsion; directing emotional appeals to a judge is pompous. The interaction of style and content communicates an attitude more strongly than style or content alone.

The following paragraph contains not only abundant legalese but also three pompous expressions combining style and content. Try finding the three.

Needless to say, we disagree with much that is set forth in the Court of Appeal's Opinion herein. Nevertheless, this Petition for Rehearing is restricted to but a single aspect of the said Opinion. This single aspect is the one which pertains to that ratification of an act of his agent which is submitted to flow from the facts as represented by Mr. Jones to the Superior Court (Opinion: page 4, line 2 to page 5, line 2, page 11, line 7 to page 12, line 19). Specifically, we respectfully submit that the Court of Appeal's views relative to the assumed non-existence of such ratification, are predicated upon a factual assumption which is disclosed by the record to be incorrect. This being so, we submit that the actual facts, revealed by the record, are such as clearly to entitle us to prevail in respect of the ratification theory. (R.W. Benson and J.B. Kessler (1986) Legalese v. Plain English, Loyola Law Review, 20:301.)

The authors recognize as distinctly pompous: "needless to say," "to but a single aspect," and "clearly to entitle us to prevail." (Id., at p. 310.) "Needless to say" is too snide for general usage, but "clearly to entitle us to prevail" is the norm, a flash point where the legalese defenses against pompous eruptions generally fail. Proclaiming the clear superiority of one's arguments arrogantly tells the court to accept your say-so as authoritative. Finally, "to but a single aspect" is subtler, showing how legalese disguises pomposity but sometimes only partly succeeds. The awkward and redundant "but" is legalese; here, it also expresses actual pomposity by flaunting the lawyer's grace in filing a narrowly focused brief.

Legalese: Pomposity Ritualized

1st entry in the Pomposity Series

We can explain why lawyers' writing is mediocre once we understand that lawyers are professional talkers not writers, but legalese and related terrible writing resist explanation. Folk-theory behavioral economists now seriously propose that legalese usage impresses clients with the lawyer's competence. The economic theory is only plausible for incompetent lawyers; to understand self-defeating legalese, you need depth psychology, but readers beware, depth psychology tells ugly tales.

Critics of legalese sometimes call it pompous writing, but pomposity is an intruding, self-important, or self-dignified attitude—unlike legalese, which is a writing style. In the "Pink Panther" movies, Inspector Clouseau caricatured pomposity: assigned to parking-meter detail, the inspector bragged about his responsibilities. Self-importance often becomes comic in life, too: an attorney introduced himself in his first appearance by boasting he participated in a California Supreme Court case—which he lost. Inspector Clouseau and the boastful attorney are pompous without legalese's help, and some attorneys are unassuming despite their legalese use. Legalese only sounds pompous.

My premise is that stylized verbal mannerisms ritualize unwanted character traits common in professions—in law, pomposity. Law is a powerful profession, and power attracts the pompous, who base their self-regard on trappings of high office. Baskers in pomp and ceremony absorb esteem from office: wanting power's semblance, they learn chasing power captures its appearance. Lawyers love power, many first fell in love with its appearance, and those bored or repelled by pomp and ceremony recoil from law practice in ceremonious courts.


While pomposity is legalese's outward form, lawyers who write "comes now" and "pursuant to" themselves appear conformist rather than self-important: the lawyer using legalese can be pompous without seeming pompous. Legalese, pomposity ritualized, camouflages and acceptably expresses lawyers' natural obnoxious pomposity. The surprising implication is that plain writers, although less pompous than legalese writers, occasionally erupt in spectacular pomposity; since legalese hides lawyers' pomposity, removing the legalese will reveal it, as in the following two examples.

The first is Bryan Garner. His writing cleansed of legalistic mannerism, Garner's personal mannerisms sully his citations. In "The Winning Brief" Garner offers writing tips supported by "Quotable Quotes." Who does Garner quote? The plurality is from Garner's own works, quoted 28 times. The next highest is an edited appellate-practice manual with 20 quotes, and the decline steepens. Garner should quote himself, but are his quotes really more "quotable" than all other authorities? Fowler scores five Quotable Quotes, Joseph M. Williams none. It's arguable whether disproportionate self-quotes constitutes pomposity, but self-quotation becomes affectation when Garner implies he is pre-eminently quotable.

The second example is blogging legal-writing teacher Wayne Schiess. Wayne's self-important affectation is presenting professional opinion as personal taste: a list "Random words I dislike"; the sentiment "Sometimes the background is longer than the analysis. I don't like that, and I'm not alone"; and the remonstrance "I don't like this [elegant variation]. It confuses me." The blogging culture tolerates self-centered effusions, but they reveal a kernel of pomposity that affects the writer's style.

As plain writers, Bryan and Wayne cede the profession's conventional safeguards against everyday pomposity; legalese's ritualized pomposity would suppress or mask both Bryan's and Wayne's personal pomposity. For Bryan, traditional over-citation of all authorities would hide his pompous tendency to over-quote himself. For Wayne, legalese would block his first-person reference and substitute a ritualized pompous form, such as "this writer," which doesn't make the author seem self-important.

Next entry—Actual Pomposity

“And/or” and the (un)lawyerly practice of weaseling

2nd in the and/or series

And/or isn't always a weasel word ["a word that makes one's views equivocal, misleading, or confusing"], but even when not, it conveys a weaseling, equivocal style. You might think when an obfuscator uses and/or, he is trying to imply he carries the lighter burden of or when and is required, but that isn't how this obfuscation typically works. The obfuscatory use of and/or usually involves substituting it for or when the conjunction means exclusive or. The purpose isn't to confuse the reader about the conjunction required—for that, a particularly stupid reader would be required—but to distract from the disjuncts' exclusivity, which is for another reason embarrassing to the writer's argument. A simple example, just to convey the idea, is the advice "at the dead end, turn right and/or left," which makes the absurdity obvious to convey the method of misdirection. Directing someone to go right or left at a dead end is uninformative, and "turn right and/or left" denies their exhaustive character, the source of their ridiculousness. The following realistic example of weaseling is taken from a recent court opinion. Judge Armendariz states for the California State Bar Court:

Respondent knew that 'Bole' did not stand for the proposition he claimed and/or he knew it was not a reliable precedent.

"Nonprecedential" means the case doesn't deal with the subject claimed; "unreliable" means other cases supersede Bole. Either Respondent knowingly cited a nonprecedential case, in which case whether it was reliably precedential doesn't pertain; or Respondent cited a case he knew was unreliably precedential, in which case the court must concede that the case is colorably precedential. Here, the mutually exclusive character of the disjuncts embarrasses the court's argument because the court would have to know whether the case is nonprecedential or unreliable to credibly charge Respondent with either. The court's weaseling here is sly, as is clear if the reader reviews the incident. The trial court in which Respondent had cited Bole had claimed it stood for something else; the State Bar Court couldn't support the judge's contention but could justify the alternative characterization "unreliable," although the trial court hadn't confronted Respondent with it. The court's weaseling occurs because neither disjunct is satisfied, the and/or serving to muddy readers' understanding of the terms. If Judge Armendariz wrote, "Respondent knew that Bole did not stand for the proposition he claimed or he knew it was not a reliable precedent," she would evoke the reader's criticalness.

When and/or doesn't directly serve as weaseling's instrument, the construction conveys an attitude tolerant of weaseling which at the least shares with weaseling an indifference to precision, an attitude that cries, "Why admit anything more than I'm required to?" even if the lawyer can avoid admitting an immaterial truth only by equivocation. And/or resembles in this respect other weaseling expressions, such as routine replacement of precise dates in pleadings with "on or around" or "1 to 15 inclusive" for an exhibit list, although 1 to 15 already implies 15's inclusion.

Although most instances of and/or use are not directly obfuscatory like Judge Armendariz's Bole finding, they help camouflage instances that directly obfuscate. The same court that made the overt obfuscation included the phrase and/or ten times in the 48-page opinion, and the opinion can supply examples for the other types of and/or misuse, which camouflaged the insidious Bole-related misuse.

The remaining categories are substituting and/or for and substituting it for or. First, and/or for and:

[B]y repeatedly making speaking objections, gratuitous comments, asking the identical or near identical question to questions that had been asked and/or objections sustained to and arguing in front of both juries…

The charges assert that Respondent supposedly did all these things repeatedly. Hedging with or doesn't fool anyone and isn't intended to, at least not directly.

The court substitutes and/or where or is correct in this example:

He repeatedly badgered, berated, screamed, yelled, and/or raised his tone at witnesses and the court, despite court warnings, admonitions, and orders not to do this and instructions to calm down and act professionally.

"Yelled and raised his voice" is ludicrously redundant; or suffices.

Besides camouflaging obfuscatory weaseling, the habitual form of lawyerly weaseling comes from the lawyer's distrust of his intuitions concerning the contextual determination of or's meaning. The rules may be hard to specify, but that doesn't mean the distinction is subtle. Whether the meaning is inclusive or exclusive, seldom will readers doubt the contextually determined meaning of or.

The best that can be said for ‘and/or’: It isn't necessarily stupid

Experts agree legal writers should avoid the and/or construction, but a controversy has arisen over whether using it is merely ill advised or worse, "just plain dumb." The underlying issue concerns the meaning of the disjunctive-conjunction or, and two theories contend. While or's semantic sensitivity to context is unmistakable, some disputants maintain that or's default meaning, its meaning when context is neutral, is inclusive, so a or b is true is itself true if a is true, b, is true, or both are true. In contrast, the simultaneous truth of a and b in an exclusive disjunction falsifies it if a or b is true. If or is an inclusive disjunction, then the and/or construction is "just plain dumb": the unenhanced or already means and/or. Allowing for exceptions, linguist Geoffrey Pullum explains the and/or construction uses overstatement to exaggerate the inclusiveness ordinary or already possesses, but in legal writing, using hyperbole is perhaps just another route to being "just plain dumb."

Pullum argues by appeal to compelling examples; his most persuasive example is:

Is Gordon Brown or the Pope in the U.S. today?

Knowing that the Pope is in the country, one answers "yes," without worrying that Gordon Brown is visiting. The visitors' arbitrary identities seem to preclude contextual influence, allowing or's default meaning to emerge, but context is only weak, not completely absent. Despite the unrelatedness of the two actors, the question's implied or habitual context involves summoning one of the actors, and it's harder to imagine a situation where you would need to know that either Gordon Brown or the Pope but not both is in the U.S.


If the Gordon Brown example offers Pullum some comfort, contrary examples abound. Here's one from the label on a tomatoes' package supporting the Pullum-rejected exclusive account of or:

To maintain freshness coated with vegetable, petroleum, beeswax and/or shellac-based wax or resin.

The label includes both or and and/or because "beeswax or shellac-based wax or resin" reads exclusively. Without the inclusive construction and/or, the label would be inaccurate if the tomatoes' coating contained both ingredients: beeswax and shellac-based wax; or beeswax and resin.

This example, admittedly, doesn't conclusively show or is exclusive, as context might yet intrude; the predominance of subtle contextual influences brings default meaning itself into question. Rejecting default meaning altogether still rebuts and/or's inherent stupidity: and/or avoids being "just plain dumb" whenever the construction avoids redundancy. The examples don't settle or's meaning, but they rebut a strong inclusive default meaning as Pullum proposes, in which context effects are due only to logic, not to habit.

Three facts of usage and native-speaker's intuition demonstrate a (weak) presumption favoring an exclusive-disjunction interpretation for or: 1) English dictionaries universally define or as exclusive by describing its conjuncts as "alternatives"; 2) while and/or is indisputably an inclusive disjunction, English has no artificial exclusive disjunctions, as we might expect as compensation if or, unenhanced, were inclusive; and 3) as in elementary mathematical-logic classes, where the teacher must emphasize or's subject-specific inclusive meaning to dissuade students from importing its natural exclusive meaning, speakers' intuitions lead them to interpret or as exclusive.

Judicious use of and/or isn't stupid and results in no worse than an uneuphonious and slightly confusing product, each because the construction has no counterpart in ordinary speech, but writers of and/or seldom use it judiciously. The next entry will discuss the main source of and/or excess, the writing defect weaseling.

The tempo of composition

Manuals instruct writers to work in stages—brainstorming, outlining, writing, and revising—each involving different intellectual operations best kept separate because they elicit mutually interfering mental sets. Notably, the reviser's criticalness defeats the writer' flow, causing writer's block; but the manuals overlook another origin of writer's block in the opposite attitude, which seeks formless flow.

Writing's iterative stages don't exclude the attitudes each subordinates; a writer attends to form more when revising than writing, but attention to form isn't absent from the writing stage nor should the writer try to totally remove the fabled inner critic when writing a first draft. That effort may be as common a cause of writer's block as the overcritical attitude: banning rather than muffling the sense of form takes the fun out of writing. The inner critic uncurbed makes writing too difficult; the inner critic excessively suppressed makes writing too painful. These affective signals are the writer's guidelines. Following the affective guidelines makes for writing with the greatest formal excellence compatible with keeping pace with thought.

Intentionally writing badly, even in the first draft, is unpleasant, and it's also impractical. Sloppy first drafts are inefficient because they unnecessarily complicate revision, but much more importantly, they're self-undermining. Working far below their formal capabilities when composing first drafts, writers not only waste a writing-practice opportunity but blunt their skill and acquire bad writing habits if they suspend all concern with their output's form.

Unbalanced Briefs: Their Multifarious Causes

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Unbalanced briefs—briefs expanding on the wrong information—greatly outnumber the balanced. An inventory of causes of unbalance may help lawyers avoid their influence.

Conventional causes involve following norms and practices that are outdated or irrational. Law is a conventional endeavor because the legal system values stability, and the crevices where some originality is helpful, even necessary, are hard to locate. Lawyers gravitate toward both the habitual and the conformist forms of conventional conduct. Force of habit extends practices originating in law school exams, inclining lawyers to explain obvious micropoints, a practice that once maximized point scores on semi-objective law exams. Conformity, the factor co-ordinate with habit as a source of conventional writing, is following the crowd rather than the past, but it produces the same result, since the legal consensus is based on common tradition. From conformity follows legalese, "storylike facts," and routine incorporation of boilerplate text.

Substantive causes of unbalanced briefs are where incomprehension or inferential failure makes the writer fail to discern what to emphasize. The lawyer who emphasizes immaterial information may include matters not in contention or contentions not relevant to the issues; both result from not understanding the case and authorities. In emphasizing the uninformative—more common than emphasizing the immaterial—lawyers may lack the legal depth to distinguish the truistic from the novel. A lawyer with little understanding sometimes consoles himself with the thought that his brief's comprehensiveness will win the court's admiration, but if the court gauges a lawyer's understanding, it will take its cue from the lawyer's discrimination of materiality and informativeness.

Executory causes of unbalanced briefs are practices inexorably leading to unbalanced briefs. The most common executory cause is the practice of retracing the lawyer's own progress in reaching a conclusion. As researchers, lawyers build frameworks supporting their conclusions, but once in possession of a strong conclusion, the underpinnings often require little further explanation. Rather than taking the perspective of the reader, the lawyer recites the course of his personal investigations.

Compensatory causes of unbalanced briefs occur when the lawyer reflexively hides deficiencies in analysis by overemphasizing other facets or even relying on the information's raw copiousness. Sometimes this happens when the analysis is weak, sometimes when the case itself is. Even without intending to cover up weakness, the lawyer is unable to choose among fundamentally flawed arguments.

Which cause is the most common? Probably the conventional causes, rooted as they are in law's institutional nature.

The that – which rule: Cure or cause of uncertain meaning

One topic in social psychology concerns behavior reactions when strongly held irrational expectations are disconfirmed; the beliefs may paradoxically strengthen. Remarkably, rules of grammar—such as our topic, the that – which rule—can be the subjects of these strong beliefs. Attorneys sometimes worry that violating one of these imaginary rules of grammar will prejudice judges against them, but believers—as we'll call those who contend the that – which rule governs grammar or usage—don't readily notice disconfirming evidence, and a believing judge won't notice yours. The proof is that when confronted with disconfirmation, believers express shock—not at their own credulity but at the enormity committed upon the English language.

Legal-writing authority Wayne Schiess, I was surprised to learn, strongly upholds the that – which rule, forbidding the use of which without a preceding comma to start a relative clause. (See http://tinyurl.com/yamenoc and http://tinyurl.com/ycz7hvk.) A reader brought Wayne's attention to the violation of this supposed grammar rule in Uniform Commercial Code section 2 – 714:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2 – 607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.

Wayne's informant stared at UCC, § 2 – 714, most of the day, but he apparently never considered that his discovery controverted the supposed rule. Wayne agreed with his reader about the supposed which error; that should replace which, Wayne instructed, and with Wayne's help, I understand what drives this usage convention. When which appears without preceding comma, believers feel uncertain about the writer's intent, the uncertainty arising from English grammar's reliance on the comma to distinguish nonrestrictive clauses, hence on the omission of a comma to distinguish restrictive clauses. Since it's inherently harder to avoid omission errors than commission errors, the believer wants the added security afforded by confirming the comma's omission.

The rule provides the reader with greater confidence that the author intended a restrictive clause and didn't carelessly omit a comma, but the reader is unlikely to notice and question your meaning unless you err. Believers (probably a small minority of legal readers) derive a sense of security from authorial obedience to the that – which rule only when they are made insecure by deliberately applying the misguided rule.

The curse of excessive citation

Brief-writers' faulty citation practice betrays their failure to subordinate the entire brief to persuasion. Many legal propositions asserted will be truisms or otherwise uncontested, as a 19^th-century California Supreme Court recognized when it wrote, "No citation of authorities is required to show that a will is to be construed according to the intention of the testator." (See In re Estate of Stewart (1887) 74 Cal. 98.) The introduction should surprise most brief writers, ruled by today's norm to cite wherever possible.

Brief writers mimic judicial opinions by citing comprehensively; but judges understand that briefs and opinions serve different purposes, and judges aren't pleased with brief writers. In one judge's account, "A lawyer should include as few [citations] as practical…" A study of appellate judges revealed they believed that lawyers should restrict presentations of authority to cases useful to the judges, a standard they claimed lawyers "by any measure" failed to meet. Judge Ruggero J. Aldisert recommended that brief writers "Use authorities sparingly and only to the extent necessary to support a well-thought-out theory of your case." (All quotes from B. Garner, The Winning Brief (1999) at p. 131.) Judges aren't experts on their own persuasion, but here, the judges advocate citing cases only to prove points in contention for good reason: the practice avoids miscue by informing the court only of what's relevant.

Even if lawyers weren't often confused about the distinct properties of a brief compared to a judicial opinion, the amount of time lawyers spend reading opinions would distort their perceptions. When a brief writer looks at a legal proposition unaccompanied by citation, it looks unfinished, but the writer should suppress this misperception.

Lawyers are also subject to the much-studied cognitive illusion of overestimating the probability of conjunctive statements. (See http://tinyurl.com/ycdqdbm.) A table of authorities with thirty-five entries proclaims that the lawyer's argument succeeds only if he correctly applied that many legal propositions. A table of authorities containing seven authorities suggests that 20% as many tests establish the argument's soundness. Assuming the writer provided authority for each contention, the brief with seven authorities is logically more secure, although many experimental subjects naively surmise that satisfying 35 conjoined claims is easier than satisfying seven. The conjunction fallacy encourages more citations, but an uncluttered brief with a compact table of authorities better persuades.

The origin of verbosity in law-school exams

Perhaps understanding how writing a law-school exam differs from real writing can help students both write the exams and minimize the damage mechanical scoring inflicts, as many lawyers never lose the verbose style law-school exams instill. By law-school exams, I mean the open-ended essay questions that require the student to analyze certain facts by applying classroom law. The professor scores these questions semi-objectively by adding points for answer items matching the grading template.

The greatest legal-writing virtue, Concision, involves knowing what to leave out, but the fundamental rule for passing a law-school exam is to leave nothing implied because, with semi-objective scoring, the grader doesn't infer points. Preparing for exams that strictly penalize gaps improves the reasoning of the weaker analysts, but it harms the Concision of the stronger writers, who have begun to distinguish the implied from the omitted. The fault isn't the nature of the exam questions, the staple of legal analysis, but grading that's too objective, too fine grained, too compulsive in fairness. Why would being compelled to write to this standard, primarily in the first year, cause lasting damage to the aspiring lawyer's expressive ability? Assuming students don't conclude that the absolute prohibition on subtlety governing law-school exams defines legal writing—but who's telling them otherwise—isn't writing law-school exams just another kind of writing, and can't a writer learn to adapt flexibly to write to differing standards?

The objective foisted on the law student differs from the aim of any other kind of writing; yet, it's similar enough to teach interfering habits. A writer ordinarily seeks effect in the reader, whether to persuade, inform, or entertain, but the exam writer is indifferent to his exam answers' success as writing when scoring points at the sub-sub-issue level according to a grader's template. Writing to template rather than for effect, particularly during intellectually formative years, encourages an excessively objective frame of reference and argument aimed at notional proof rather than persuasion, forming a writer obsessed with capturing every detail, not with omitting the irrelevant, uninformative, or unpersuasive.

Judges aren’t experts on their own persuasion

Plain-writing advocates sometimes lose their nerve in opposing ineffectual traditionalism. The timing of the panic attacks is a clue to a deeper temptation besetting brief writers; these plain writers hesitate in recommending the same practices. Advising that hanging prepositions, split infinitives, and contractions aren't flaws per se, they advise caution in enjoying this liberality: you should adapt your writing to your audience. If adapting to your audience means writing the way you anticipate the judge endorses, then these adaptations reduce your persuasiveness to what the judge would attain as an advocate.


The cautious plain writers don't explain their admonition's specificity. Abandoning various traditional verbal forms called legalese is a big part of a brief writer's early progress. Why such concern that a contraction will prejudice the court and no apprehension that the absence of a "Comes now" in a pleading or the presence of approximate dates in a facts' statement will offend the court's expectations? A commonality distinguishing the three grammar/style myths—hanging prepositions, split infinitives, and contractions—lies in their being longstanding "disputed issues" of middlebrow culture. They are also myths that have been almost entirely demythologized. Believers on the wrong side of a losing myth are often opinionated, and everyone has had at least one regrettable confrontation with a grammar fundamentalist; but whether the judge approves of your grammar standards doesn't determine the effectiveness of your practices. Judges aren't experts on persuasion, least their own.

The judge's pleasure tempts lawyers. It tempts trial attorneys, such as the inexperienced who become obsequious in the courtroom, but the parallel temptation for brief writers is more subtly expressed, as writing permits less unctuousness and more anxious conformism. Both the unctuous trial attorney and the overconforming brief writer aim to please because of unconfidence in their ability to persuade.

Thinking outside the verb

English grammar doesn't prohibit ending a sentence with a preposition, but unless the sentence is very short, the practice is usually poor style. The guideline follows as corollary to an overarching principle of English style: the sentence's end position should be exploited to convey new information, a function it performs with unique effectiveness. According to some critics, manipulating word order is the skill today's writing instruction for professionals most neglects; debunking the myth that the hanging preposition is ungrammatical endears these constructions to writers unmindful of word order.

Wayne Schiess (http://tinyurl.com/yab9ddj) gives an example of a sentence that should end in a preposition; compared to the stilted and verbose Sentence 1:

A lawyer attending one of my seminars offered a great suggestion of which I had never thought,

Sentence 2 is more natural and concise:

A lawyer attending one of my seminars offered a great suggestion that I had never thought of.

Has Wayne demonstrated that effective style permits commonly ending sentences with a preposition? No, the writer can avoid the hanging preposition's limpness, sound natural, and be more concise by thinking outside the verb, as in Sentence 3:

A lawyer attending one of my seminars offered a great suggestion I had never considered.

Developing legal theory in routine briefs

Conventional wisdom holds that only difficult or esoteric cases merit briefs which formally develop the law. The routine case, on this view, affords at most the opportunity to adjust the law to facts. Contrary to the conventional wisdom, routine briefs, even when the issues are procedural, often become more persuasive by arguing for original legal conclusions that address the dispute's essence. Lawyers hesitate to develop the law formally in routine cases because they anticipate that the court may reject the original legal analysis and imperil an otherwise solid case, but their objection overstates the difficulties in predicting judicial acceptance of the brief-writer's insights.

Legal insights are apt to clarify a routine procedural case when the facts relevant to the appeal are unusual, causing the relevant decisional law's underelaboration; a routine case can present unusual procedural facts when procedural posture makes appeal unlikely. In the following example of small-scale formal-law development, the summary judgment appealed was unopposed below, and a party shows unusual practical irrationality when it abstains below despite caring enough to appeal. Because of the dearth of case law on unopposed summary-judgment motions, no crisp holdings address what the appellant can argue after failing to file an opposition. I briefed my distinction between attack and rebuttal to arrive at the governing principles:

A defendant's prima facie case, when unopposed, can be attacked but not rebutted on appeal. Rebutting the prima facie case means asserting contrary facts; attacking the prima facie case means undermining the technical adequacy of the declarations, the substantive relevance of their content, or the sufficiency of the undisputed facts.

A distinction clearer than the unelaborated case law provides cleanly applies to the facts:

G argues that the "credibility exception"—which prohibits challenges to undisputed facts based on whether the court should believe the witness's declaration—is invalid, and abrogating the credibility exception, G says, would undermine the declarations supporting summary judgment, since alleged inconsistencies in the Ss' deposition and trial testimony would establish their evidence is incompetent. Disputing the undisputed facts with opposing evidence is rebuttal, not attack. Even without the credibility exception's prohibition barring G from creating disputed facts from mere credibility challenges, G would not have attacked Ss' prima facie case; he would merely have tried to rebut it.

Responding to Buckshot Briefs

Issue proliferation goes virulent to become buckshot briefing when the number of issues compels inadequate development of each. The proliferator of issues thinks he increases his chances of prevailing because he naively disregards the dilution of stronger arguments. The proliferator knows that if he prevails, it will probably be based on the arguments he knows are stronger, but he takes the attitude endemic among lawyers that risk is eliminable. The buckshot briefer, in contrast, knows he has little chance of prevailing and hopes to strike it rich by luck. The buckshot briefer typically can't identify his strongest arguments, since none are developed adequately.

A lawyer, as a rule, will file a buckshot brief only when two conditions are satisfied: he is prosecuting or defending a weak case, and he is unable to analyze the law and facts of the case competently. If the lawyer is defending a strong case, the benefits of developing the strongest arguments are manifest, and the buckshot case will rarely tempt. But even if the case is inherently weak, still the buckshot case is a bad strategy: the lawyer can do better by relying on the strongest arguments, however weak. Judges assuredly know these truisms, and the buckshot briefer will be subject to judicial disdain, to complicate his disputational debility.

The number of buckshot briefs submitted suggests the practice must carry some advantages. One advantage of the buckshot brief is it allows the briefer to offload his research responsibilities to opponent. Instead of researching the arguments to discard those that aren't supportable, the buckshot briefer includes any impressionistic argument and lets his opponent sort out the meritorious. This is the unavoidable burden of responding to a buckshot brief.

Filing a buckshot brief also burdens opponent with conceiving how to organize a coherent response to the disjointed submission. If he succeeds in enticing his opponent to oppose his buckshot brief with a buckshot response, the buckshot briefer will have leveled the field. A lawyer cursed with responding to a buckshot brief must impose a simplifying structure on the buckshot briefer's meanderings. He should structure the response to bring out the buckshot character of the brief without expressly having to dwell on it; the response should expose the implausible validity of the buckshot brief's simultaneous contentions. In responding to a recent buckshot brief, I introduced my structuring of the briefer's arguments this way:

G presents a buckshot case rhetorically emphasizing his right to equal protection of the law. He covers all bases: the court should have granted the continuance; failing granting the continuance, the judge should have submitted to G's peremptory challenge; and failing to prevail on his jurisdictional challenge to the court, G should have prevailed on the merits.

When possible, the best organization of arguments targets common assumptions of the buckshot arguments, but often arguments aren't merely presented in buckshot fashion; they really are disjointed. Deal with disjointed arguments by organizing the response around the soundest arguments. The responder shouldn't fall to the temptation of avoiding the strongest arguments because the buckshot briefer doesn't emphasize them.

The colon: When the explanation is more important than what’s explained

Each punctuation mark serves a core function, and usage should follow the core function whenever the rules governing that function are applicable. Disputed Issues has considered the core functions of several punctuation marks: The comma sets off nonrestrictive elements; the semicolon neutrally connects independent clauses; and the dash emphasizes matter tangential in its immediate context. Following the core functions means eschewing rules unrelated to the core function unless the core function is unrelated to the construction. To take the comma, usage guides sometimes state the rule that a comma doesn't set off an adverbial clause at the end of a sentence, but the restrictive - nonrestrictive distinction the writer should apply eviscerates the rule.
The core function is the main function for ordinary discursive text. The colon has a variety of uses, such as exemplification by lists, but the central discursive use of the colon is to substitute for a word like because to create a clause more central than the independent clause to which it would be subordinated. From the opposite end of the grammatical telescope, the colon demotes the independent clause to a parenthetical role.
Here's an example:

Density is audience relative: the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think.

Grammatically, an adverbial clause could substitute for the clause following the colon:

Density is audience relative because the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think.

The colon serves better than the adverb, since the matter in the because clause is more important than what precedes, which only creates a transition through a more general proposition; the more important propositions shouldn't ordinarily be subordinated to the less important. The clause following the colon becomes independent when the colon is substituted, but this happenstance doesn't affect the colon's usage; a subordinate clause can follow the colon, and the independent clause's significance would remain parenthetical.

The subtle distinction between “that” and “which”

Relative pronouns that and which, usually taken for synonyms, differ subtly in sense; distinguishing their uses improves Clarity. Professor Geoffrey K. Pullum, who seems to have first noticed the difference, challenges the that-which rule, whose proponents assume these pronouns mean exactly the same thing; Pullum observes which is used more for conveying new or indefinite information in the pronoun's relative clause and that for established or definite information, but he reports only a mild statistical trend. (See http://tinyurl.com/yjnhhc7) Pullum's basis for distinguishing that from which contradicts the that-which rule, most widely recommended but designed for copy editors' convenience. The copy-editor's solution uses which to start descriptive clauses, that for restrictive clauses; that's occurrence confirms that the writer intended no comma before the relative clause.

Either the meaning distinction between that and which isn't weighty — Pullum's apparent view — or Pullum has missed the distinction's essence by recognizing a correlate. A more exact way to construe the that-which distinction applies which to parenthetical restrictive clauses, that to nonparenthetical ones. Since usage guides mistakenly equate "nonrestrictive" (or "descriptive") with "parenthetic," the notion of a parenthetic restrictive clause may seem nonsensical, but "parenthetic" and "nonrestrictive" name partly correlated but distinct linguistic properties . Restrictiveness concerns whether the modifier changes the reference class of the term modified; parenthesis concerns whether the information is incidental. Parenthesis admits of degrees; restrictiveness affects comma placement.

When instincts for pronoun choice fail, a writer can find guidance in the parenthesis test. Parentheses (the punctuation marks), like dashes, aren't confined to syntactic units. To apply this test, enclose the restrictive relative clause in parentheses. If the resulting sentence makes sense, then which is your choice, despite the absence of a comma. Here's an example of which being used restrictively but parenthetically.

An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive which yielded no offsetting gain for the extant inhabitants.

To test, rewrite as:

An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive (that/which yielded no offsetting gain for the extant inhabitants).

Since enclosing the relative clause in parentheses isn't illogical, which is the better relative pronoun. The information the clause conveys is marginal — figures as a mere qualification — even though the clause is restrictive.

The Forgotten Topic Sentence

Lawyers seldom design topic sentences deliberately; yet, explicit initial topic sentences demonstrably improve comprehension of difficult material through the cognitive mechanism of semantic priming, whereby concepts become more accessible after being activated when the reader entertains related concepts. Instead of using topic sentences, lawyers often avoid writing them by using trivial statements of dates and case names as substitutes (see http://tinyurl.com/rx3bth), since composing and revising topic sentences seems dreary work. (See, for example, http://tinyurl.com/qw2kzl.)

Most of the discussion of topic sentences — which occurs in the primary-education literature and in the deliberations of teachers of freshman composition — exaggerates the generality of topic-sentence usage. Without the aid of research, educators have long extolled the topic sentence as prerequisite for a proper paragraph. "Language Arts" instruction in the early grades goes further than recommending a topic sentence for every paragraph, calling for a "summary sentence" at each paragraph's end.

Students inevitably notice that, except in textbooks, paragraphs aren't nearly so regular, including paragraphs constructed by the best writers. Even when paragraphs contain strong topic sentences, some serve better at the paragraph's conclusion or, preceded by transitional sentences, toward the paragraph's middle. Students conclude that their searches for topic sentences in English classes serve as an exercise rather than a tool for paragraph construction; that teachers don't criticize the students' schoolday paragraphs for lacking topic sentences reinforces this conclusion. Like any exercise, the construction of topic sentences became a dreary business, and going beyond performing such exercises becomes a mark of the students' sophistication, of their adulthood as writers.

Teaching students a distorted view of paragraph construction is bound to cause disillusionment; so, writers must fashion a more nuanced view of topic-sentence usage. The distortion became apparent when the education world was rocked by Braddock's 1974 study, indicating that initial topic sentences rarely occur in the paragraphs of professional writers. Later research qualified Braddock's findings by showing that topic-sentence usage among professional writers differs with the kind of writing. Researchers found that initial sentences vary in their closeness to the educators' idealization and are classifiable into two broad types: natural topic sentences and ideal topic sentences. Natural topic sentences lack some of the characteristics of classic topics; they serve as point sentences instead of tertiary thesis statements. Ideal topic sentences are those still taught in the schools; each states a claim supported by the rest of the paragraph. Ideal topic sentences grow more useful with the material's difficulty.

An ideal topic sentence doesn't best serve every paragraph. Sometimes an explicit topic sentence will be too heavy-handed if a measure of subtlety is called for; sometimes a paragraph will already be so cohesive that inserting an ideal topic sentence detracts from the paragraph's effectiveness; sometimes a topic is better placed somewhere besides the initial sentence. Despite their lack of universal application, topic sentences are particularly important in writing legal briefs, where unnecessary subtlety is misplaced. Using ideal topic sentences sharpens and polishes a brief dealing with complicated substantive law. On matters where the judge can be presumed knowledgeable, natural topic sentences may avoid the appearance of condescension, but natural topic sentences still require revision — often, reorganization of the sentences — so they correspond to their paragraph's content.

Overzealous Concision: Density

This article under its subhead "Embrace prose and avoid terse [read, dense] writing" describes what I mean by "density":

This piece of advice is a reaction against the Bourbaki style ... [of explaining] as little as possible in order to give the tightest presentation possible. ... [I]t is also very hard to read ... an altogether unpleasant experience unless you already know the subject matter and just want to review, not really learn a new subject. ¶ ... Explain ideas fully and clearly. ... [D]o not shy from writing more in order to explain more.

Writing more to explain more is advice unlikely to help a lawyer, who is prolix more often than dense. Writing can be at once prolix and dense, but dense writers usually strive for expository elegance, like the Bourbakis in math. That inverse relationship between prolixity and density — only a trend — shouldn't obscure the different causes of the two mistakes. Nor should the observation that dense writing uses too few words and prolix writing too many. The prolix writer overexplains and the dense writer underexplains, but each is a symptom of a different kind of problem, not the same problem or the opposite one.

Prolixity is actually related to redundancy: prolixity amounts to partial redundancy. A redundant expression repeats identical information; prolix verbiage adds what is practically irrelevant, leaving the reader with nearly identical information. The redundant writer is blind to the repetition, as the prolix writer is to the near repetition. Prolixity comes from a failure of linguistic insight.

Density comes neither from failed linguistic insight nor, of course, its overabundance. Rather, it involves failed psychological insight, in that the dense writer doesn't take the reader's perspective. Density is audience relative: the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think. For an audience of experts, a writer will forgo defining some technical terms, but explanations that organize and activate relevant knowledge help every reader.

(See also related entry Misguided Concision: Terseness.)

Unique style: expressive or substantive

Often in discussions about writing excellence, the point is made that the best writers have a unique style. Little is said to describe the contours of this style. Style has been the subject of previous entries, which define styles as tradeoff patterns among writing Virtues, but the unique styles don't mean tradeoffs skilled writers purposefully modify. "Unique style" refers to something else, but what?

Some treatments, sporting a touch of New Ageism, call this unique style the writer's "voice." These authors promptly add that voice identifies a writer like fingerprints identify ordinary persons. So is it like a voice or like a fingerprint? They're not the same. Only a universal truth about fingerprints, the absolute uniqueness of each, lends them the least interest to most of us. We usually don't even bother to form an opinion about whether one's fingerprint is attractive, more-than-usually unique, or in other manner worthy. Not so with voice. While no aspirant lands a job because of the aesthetics of his fingerprint, the aural media demand vocal qualities, innate and trained. Some voices are more attractive than others, and their attractiveness is independent of the utterance's content, the assessment part objective, part subjective.

Is a writer's unique style a voice or a fingerprint? Surely if this unique style exists, it resembles voice. Unlike a fingerprint, it obtrudes itself; we can't avoid the writer's style. If in contradiction, unique style turns out to be some subtle, technical variance, then we may avoid noticing it — hardly surprising, as it becomes irrelevant. Rather than being like voice, style would have the uniqueness of handwriting in a future civilization where none use this skill.

To the contrary, style obviously matters, yet seems impossible to define in a way keeping the supposed unique and involuntary character. Unique style is supposed to be an expressive quality that becomes more pronounced as the writer skilled. If unique writing style existed, the best writers would suffer scorn for freakishness, not only win acclaim for uniqueness. Any distinctive "voice" can annoy, will annoy someone. Yet, we find no literary critics who simply despise Shakespeare. Shakespeare's distinctiveness, we can conclude, doesn't derive from a unique writing style.

Opposed to these expressive accounts of unique style, an author's unique "style" should be conceived as intellectual style, not anything inhering in sentence or paragraph composition. Writers come to identify their intellectual strengths and learn to exploit them. When a writer settles on a style, he adopts a set of approaches to intellectual (or literary) problems.

Misguided Concision: Terseness

Concision is the supreme writing Virtue, but that doesn't mean its pursuit is never misguided or overzealous. Terseness, today's topic, is the misguided variant of false Concision; density, a future topic, is the overzealous variant.

I take the term "terse" from Wayne Schiess (http://tinyurl.com/lsfkbm) to describe misguided Concision because the example he supplies is paradigmatic, and the term evocative, despite the usage being nonstandard. The sentence Wayne describes as terse is: "One of the most prevalent defenses at trial is compliance with [Federal Motor Vehicle Safety Standards]." To display the sentence's "terse and awkward" character, Wayne points out that the skeletal sentence is "The defense is compliance." While the standard senses of "terse" are polished concision and laconic brusqueness, Wayne's meaning accords with etymology: rubbed away. A sentence like this impresses as having rubbed away too much.

Wayne rewrites the sentence, "One of the most prevalent defenses at trial is that the vehicle complies with the Federal Motor Vehicle Safety Standards," but why is this improvement — how does more Concision become outright error? If you're like me, your first thoughts will go to Euphony because of the sentence's "awkwardness," but terseness offends against Euphony only secondarily, the awkwardness rooted in a lack of Clarity. Consider that "the defense was offense" isn't cacophonous — clichés usually are Euphonious — but when "defense" can equate with "offense," both terms denote actions, such as plays in a basketball game. A legal defense isn't an action but something alleged, a proposition, and we express propositions with that clauses. You cannot coherently equate a proposition, a legal defense, with an act of compliance. "The defense is compliance" is formally incoherent, expressing a category error.

The error is similar in origin to excessive passive-voice usage in both errors' coming from a writer stuck in a point of view, instead of orienting to the reader's. Terseness comes primarily from applying the telegraphic speech involved in thinking to the activity of writing, but idiom too can dull writers' sensitivity to terse writing's incoherence. We commit category errors without embarrassment when idiom sanctifies them, but Wayne's correction, not the terse statement he corrected, agrees with both logic and legal idiom. The "terse and awkward" sentence is that way because it is neither coherent nor idiomatic.

(Related entry — Overzealous Concision: Density.)

The epistemology of passive and active voice

Much editing consists of changing passive to active, but — if active voice is more direct, simple, and natural, as often claimed — why does the untutored writer naturally use the passive? Understanding the reason a tendency exists is part of controlling it; understanding helps discount or modify our writing instincts, but I've seen no explanations of the passive voice's pervasiveness in much bad writing.

Untutored writers overuse the passive voice because the passive word order corresponds to the events' order in knowledge acquisition. Temporal beings, we are stuck in the present: only present events impinge on us directly. From our present perceptions we mentally reconstruct the past and project the future. When we rely on memory, the rememberings pertaining to the past occur in the present. From memory traces in the present, we figure out what happened in the past, whether we accomplish this reconstruction consciously or unconsciously.

The passive voice, which starts by positing current perception, mirrors our path to knowledge. To transform the passive to active, we must carry our starting point in working memory, instead of writing our thoughts as they occur. Active voice isn't more direct, not when we are reporting our thought processes leading to a conclusion, and in documents concerned with the process of discovery, as in reports of scientific experiments, the appropriateness of the passive is recognized by everyone but a few plain-English exponents. A simple example shows how the passive voice mirrors the knowledge-acquisition process:

The Jacksons's house was wrecked.

To acquire this information directly, we look at the house, and this we can do only in the present, despite the vandalism's occurring in the past. From the perception of the wrecked house in the present, we infer that it was wrecked in the past. The natural way to record our thought process is first to posit the house and then the results of our inspection. To make it active, "A vandal wrecked the Jacksons's house," we must start with a distant result of our inference, carrying the starting point in memory.

Now a more complicated legal example (from Bryan Garner's The Winning Brief, Tip 30, Example B, p. 159):

To support a trespass action when the injurious acts complained of were not actually committed by the defendant himself, the person who committed the acts must be either employed, paid, or controlled by the defendant in order to hold him liable.

(Garner rewrites this sentence "For the defendant to be liable in a trespass action when the defendant did not personally commit the acts complained of, the defendant must have employed, paid, or controlled the person who committed the acts.")

The lawyer starts from perception of the complaint's allegations of injurious acts and, by reasoning from the complaint's language, deduces that the defendant didn't commit them. The lawyer then proceeds to look for agency allegations regarding the trespassing person. The natural and direct way to record this analysis starts with the "injurious acts complained of," creating a passive-voice construction.

If the active voice isn't a more direct report of our thoughts, what recommends its use? The basic reason is the passive-voice's verbosity. The flabbiness of passive-voice writing comes not from its lack of directness or naturalness but from an excess of verbiage compared to the more concise active voice. The guideline to favor active over passive quests for Concision.

Pinball wizards and archers: A contrast between trial and appellate work

I offered a pinball analogy for trial work in another blog, where I claimed good trial lawyers must sometimes push to the limit of the court's tolerance, just as a pinball wizard seems to risk tilting. Pinball and trial work share a structure that creates incentives for limit-seeking performance: both measure sanctionability and performance by standards independent of one another. If the pinball player comes close to tilting, his near tilts don't subtract points from his score. Similarly, the judge determines whether a trial lawyer has committed misconduct, whereas the jury ordinarily determines the outcome, and the judge's displeasure doesn't automatically affect the jurors' opinion.

One additional way appellate work differs from trial work, then, is that the same decider evaluates appellate counsel's conduct and the case's strength using overlapping standards. Limit seeking would undermine the appellate counsel's purpose because it would decrease his moral credibility. In contrast to the limit-seeking performance of the trial lawyer, the appellate lawyer's performance is ideal seeking. The appellate lawyer doesn't win by barely avoiding misconduct but by impressing the court with integrity, knowledge, style, and rationality. The appellate lawyer may be likened to an archer; he obtains his goals by approaching an ideal of perfection, not by pressing to the limit of tolerable deviance.

Many typical legal-writing errors come from applying a limit-seeking model to an ideal-seeking task. (Errors in trial work often seem to derive from the reverse confusion, but that isn't our subject.) Emotionalization is often a limit-seeking tactic, as are character attacks on opposing counsel. Even excessive length comes from a limit-seeking mental set. Law and motion attorneys confuse the standards more often than appellate lawyers because law and motion attorneys are often trial attorneys, but inherent confusion about the nature of law-and-motion work complicates matters further. Law-and-motion work may seem to involve two separate deciders, the trial court deciding the motion and the appellate court applying procedural standards. In most courts, the judges have internalized the court hierarchy enough that the appellate court and the trial court aren't roughly independent. In courts insulated from appellate review, limit-seeking performances sometimes pay off.

The semicolon and expectation’s equipoise

(Second and final entry in the semicolon series.)

Freer semicolon usage would help stem the promiscuous spread of artificial connectors, an assault on Concision. It would also contribute to Clarity by simplifying the representation of expectation neutrality, since and and but represent positive and negative expectancy of the following independent clause; but you may wonder when expectations are ever precisely neutral. The most important circumstance where a writer wants to represent the expectation as neutral occurs when the first clause expresses both a positive expectation and a negative expectation; the writer wants to avoid seeming to prejudge which is the stronger.

Oliver Wendell Holmes Jr. used the semicolon with great precision in his famous epigram, where the first clause expressed positive and negative expectations:

We do not inquire what the legislature meant; we ask only what the statute means.

Holmes renounces a purposivist approach to statutory interpretation but intends the implication to elicit surprise, greatest when a correlation obtains neither positively nor negatively. Holmes can create a sense of surprise because the renunciation carries two implications or expectancies: to interpret the text instead of interpreting the legislature's will or to renounce interpretation altogether. Logically, Holmes might have said instead: "We do not inquire what the legislature meant; we ask only what the legislature should have said."

A legal writer who uses semicolons with unusual effectiveness is Judge Richard A. Posner in The Economic Analysis of Law:

Generally, specific performance (ordering the party who breaks his contract to perform, on penalty of being held in contempt of court if he does not) will not be ordered as a remedy for breach of contract; the promisee will have to make do with damages, as suggested in the Holmes dictum quoted earlier.

(The Economic Analysis of Law, p. 117 [reference to Holmes coincidental].)

Here you can see the same pattern as in the quote from Holmes. The policy-of-denying-specific-performance clause activates two opposed expectancies: that another remedy will replace it or, alternatively, that none will; a different remedy or no remedy at all.

The underutilized semicolon

The semicolon, long in decline, may be in renewal, but it remains rare in its central use: replacing a comma and coordinating conjunction to unite two independent clauses. Current pedagogy tells us that the semicolon represents a bigger break than the conjunction and a smaller break than period. Could this account have caused the semicolon's decline, as we increasingly relied on written accounts for rules of mechanics? Can writers really classify the degree of logical connection of clauses into as many as three distinct categories? Most people have a hard enough time with only two. Plain-language exponents of short sentences instruct to break off a sentence when it becomes "too" long. Does anyone expect ordinary people or even skilled writers to divide degree of connection between connected thoughts into three neat, objective compartments? Even if the compartments existed in an objective sense, our mental powers may be too weak to distinguish them.

Guided by finding an interval greater than a comma but less than a period, writers reasonably choose not to apply voluntarily an intermediate standard as ephemeral as clear-and-convincing evidence, a standard so unintuitive people apply it only when serving on a jury under court order. If the semicolon had vitality before people relied so heavily on formal explication, people must have used a different criterion, either in addition to or in place of the intermediate-pause account. The real vitality of the semicolon — the best way to use it — depends on the need for a neutral connector rather than an intermediate pause because to show a connection between ideas facially we rely primarily on two coordinating conjunctions, but and and. But combines logical conjunction with contrariety. When you encounter but, the writer implies that hearing the first clause would ordinarily decrease your expectation of hearing the second. It seems natural to assume equivalence between and and logical conjunction: but stripped of its contrariety. So assumed, and is the generic connector, but the negative-expectation connector, and no positive-expectation connector exists. And may not be quite as positive as but is negative, but and is positive, not generic. Otherwise we would have to choose more carefully between and and but whenever but applies.

The semicolon is the language's neutral connector. Use it to connect ideas directly without implying either positive or negative expectation of what follows.

(Next entry I'll discuss the main circumstance in which expectation neutrality is important.)