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.

Linguistic "register" or What is formality in writing, and why do readers demand compliance with formality rules? Part 3. Choice of register

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The chart's new sixth column tells what's good and what's bad, what's in and what's out. Formal is the traditional register for law: what should be more formal than the relationship between judge and attorney? Informal register now vies for dominance, its jurisdiction extended by expelling (most of) the hyper-grammatical rules. Everyone agrees it's good you can now start sentences with and. The restriction was arbitrary, its grammatical pretensions dishonest. The false impression that the Informal register is better than the Formal is hard to resist.

Formal register shows its good side when the feature it enlarges improves a writing Virtue, like succinctness (for Concision) and universality (for Clarity). Legal writers should observe the hyper-grammatical and personal-reference Formalities the least that evades violating one, but they should retain (or acquire) the Formal features of succinctness and universality the most their skills allow.

Next part: The celebration of informality and the unsettled status of contractions

Elegant variation: A pseudo-solution for repeated words, not repeated concepts

Rarely do positions on writing's disputed issues collide head on, but Mark Nichol's post, "7 Sentences Energized by Elegant Variation," advocates the elegant variation—avoiding proximal repetition by replacing the repeated words with synonyms—despised by writing teachers, who warn students against enticement by variety and euphony when they compromise clarity. Legal-writing teacher Wayne Schiess writes, "Even in other legal writing [besides drafting], precision and clarity matter, and since elegant variation can lead to imprecision and confusion, it is to be avoided. It makes readers stop to figure out what you're referring to."

Although elegant variation flops worst in legal writing, advisors on general writing agree with Schiess. Fowler inveighed against this "incurable vice" of "the minor novelists and the reporters." In Economical Writing, Deidre N. McCloskey defines elegant variation and discourages its use: "Simply put, elegant variation is using many words to mean one thing. For example: 'History is concerned not only with what happened but also with why events turned out the way they did.' The reader will interpret that 'what happened' and 'events [that] turned out the way they did' as two different things, when in fact they are the same thing."

Why does Mark Nichol disagree? Because he accepts the conventional analysis, that elegant variation's practitioners sacrifice clarity for a bit of "elegance"; he believes that uneuphonic repetition is the main problem elegant variation misguidedly addresses. This ignores the more basic problem of repeated concepts, untouched by elegant variation and illustrated by the revisions I reject.

Unenergized sentence: “Finding a job at 55 is much harder than finding a job in your 40s.”

Mark's revision: “Finding a job at 55 is much harder than landing one in your 40s.”

My version: Finding a job at 55 is much harder than in your 40s.

Mark's revision implies that landing a job, as opposed to finding one, is for younger aspirants. The real problem with the first sentence is using a single concept twice when once will do. You don't need to repeat the concept of finding/landing.

The company is launching a new shelter magazine aimed at women in their 30s, while American Media is developing a shelter magazine for women in their 20s and 30s.

The company is launching a new shelter magazine aimed at thirty something women, while American Media is developing a home-themed title for those in their 20s and 30s.

The company is launching a new shelter magazine aimed at thirty something women, while American Media prepares a similar offering for those in their 20s and 30s.

Mark gets rid of the repeated concept of "women," but in the last clause he substitutes a different term for the concept of a shelter magazine.

Mark's next correction is an egregious example of elegant variation.

Administrators requested waivers for regular students, special-education students, adult students, and students in continuation schools

Administrators requested waivers for regular students, special-education pupils, adult learners, and kids in continuation schools.

Administrators requested waivers for regular, special-education, and adult students as well as those attending continuation schools.

Students, pupils, and learners are alternative names for the same repeated concept, however labeled.

While noting that it's a solution to different problem, let's end with Mark's best revision, which eliminates repeated words without creating confusion.

When Brubeck chauffeured Milhaud, who didn’t drive, to the 1947 premiere, the composer drove the young musician to, as he said, ‘be true to your instincts’ and ‘sound like who you really are.

When Brubeck chauffeured Milhaud, who didn’t drive, to the 1947 premiere, the composer pushed the young musician to, as he said, ‘be true to your instincts’ and ‘sound like who you really are.'

Pushed replaces drove, a revision improving clarity, not just euphony, because the two instances of drove are different concepts. You should represent the same concept with a single word to avoid reiteration, but, as here, you should use different words for different concepts.

Linguistic "register" or What is formality in writing, and why do readers demand compliance with formality rules? Part 2. Levels of formality

To write informally imitate conversation. The chart describes the formality levels to prove that distinctiveness from speech sets each: Familiar (e.g., text messaging), Informal (blogs), Formal (academic texts and essays), and Ceremonial (ancient legal documents). The horizontal axis's first four columns correspond to the formality levels; the vertical axis displays their features, the more central toward the top. Column 5 categorizes the features in columns 1 to 4.

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The top (yellow) rows control core norms governing social distance, dictating vous versus tu and Mr. Davis versus Davis. Talkers (column 1) converse, directly and personally; whereas writers (columns 2 - 4) address their broad audiences impersonally (indirect personal reference).
 
As the green category reflects, writing more than speech conforms to syntactical rules; exaggerating and inventing them increases formality (hyper-grammatical rules).

Conversational speech is naturally prolix; formality emphasizes succinct expression (succinctness over naturalness).

Finally, talkers' propinquity encourages unique expression. Banishing terms known only to a profession or other special group, Formal-level writing aspires to literate universality, and the Ceremonial level appeals still more broadly to a humanity-wide quasi-musical sensibility (expressive universality).

The Informal level is more conversational than the Formal because difference from speech creates distance formality, but that isn't to prejudge any prescriptive questions. The next entry will answer questions like should legal-brief writers (or all writers) be as informal as the applicable social-distance norms permit?

Next entry: Part 3. Choice of register

Linguistic "register" or What is formality in writing, and why do readers demand compliance with formality rules? Part 1. The two formalities

Level of formality, the main component of linguistic register, imposes an artificial ineffectuality on writing and is nothing but a pain for writers. Why must writers comply with the applicable register; more fundamentally, what is the substance of formality rules? Does a formality level consist of a congeries of purposeless admonitions? That implausible and useless assessment is implied by the style-guides’ treatment, but you can intelligently comply with general rules only by understanding their purpose. Then, why do style guides omit mention of what writers do when they adopt a register or why they should do it? This entire series explores the function and nature of formalities. Explaining their under-analysis is easier; “Formula and Formality” already has. Formalities recognize and reinforce norms of hierarchy and distance, an unpleasant topic for writers: who wants to think of himself as kowtowing?

The entry “Formula and Formality” identified the two dimensions of formality level, social status and social distance, but it only nodded toward the latter. The tests proposed in that entry detect “status formalities,” while this series deals with “distance formalities,” those less embarrassing, weaker norms governing intimacy rather than subordination. A legal writer who breaches a status formality challenges the judge’s authority, whereas one who breaches a distance formality seeks an unwanted intimacy. Writers should avoid either breach, but breaching a status formality is worse: the judge’s reaction is "moving against,” angry and aggressive, because you are, unwittingly, staging a rebellion. Breaching a distance formality, on the other hand, evokes avoidance of excessive social propinquity, as when one person stands too close in conversation, invading the other’s “space.” It elicits “moving away,” rather than “moving against.” Avoid either breach, but you can see which produces direr results. Still, full acknowledgement of distance-formality’s demands modifies some conclusions. We will discover, for example, that the use of contractions, which “Formula and Formality” showed irrelevant to status formality, may nonetheless breach the weaker defenses maintaining social distance.

“Formula and Formality’s” thesis was that status formalities, those literary norms that acknowledge one’s station in life, are governed by a principle prohibiting subordinates from lessening their own burdens at superiors’ expense. (See "Proofreading and Credibility.") Even seemingly arbitrary connections between status and its marker—as with the French use of vous instead of tu when addressing superiors—manifest the superiors’ entitlement to substitute subordinates’ effort for their own: enunciating the shorter but less distinctive tu form is the superior’s exclusive prerogative. The formula for distance formality takes another tack: face-to-face speech between intimates is informality’s model, and the features of written communication, stripped of similitude to speech, mark formality. Shifting effort to the social superior constitutes status-formality breach; failed hypertrophy of certain features distinguishing writing from speech constitutes distance-formality breach.

The next entry will consider specific differences between speech and writing accounting for distance formalities, to recognize them by example and precept.

Next entry: Part 2. Levels of formality

Theories of the comma

Style manuals typically classify comma usage as either heavy or light, but that distinction isn't the fundamental divide, which concerns what to use the comma for, not how much to use it. Two approaches, we'll call them confusion avoidance and clarity enhancement, describe the major philosophies of the comma. The confusion avoiders (avoiders), basing their usage on case-by-case judgment, use commas when omitting them creates ambiguity, confusion, or miscue. Clarity enhancers (enhancers), in contrast, base their comma usage on syntactic units: commas carve sentences at their joints, grouping words belonging to grammatical units grasped whole.

I don't want to exaggerate the differences, which are fewer than the similarities. Both recognize a tradeoff between clarity (heavy punctuation) and concision (light punctuation) and appreciate the need to strike some balance. Both recognize the conditions where a comma is simply wrong, such as separating subject from verb or a verb from its direct object.

The usage patterns diverge in their systematism, but the divergence is one of degree. Enhancers, for example, usually conform to the rule that a comma should precede a coordinating conjunction connecting two independent clauses, whereas avoiders are indifferent to the rule and will more often omit the comma, but exceptions true to the philosophies abound. When the second clause begins with a nonrestrictive phrasal modifier, and punctuating both clause and phrase produces a punctuation surfeit, enhancers might omit the comma before the coordinating conjunction, as here:

This view is espoused by some determinist free-will deniers but as you would expect, the libertarians express the stronger views.

Analogously, avoiders put a comma before the conjunction to avoid sentence-specific ambiguity. Take the sentence,

We owe mass literacy to the printing press, and mass democracy we owe to its progeny, the newspapers.

Omitting the comma before and could be read as crediting both the printing press and mass democracy for mass literacy. To avoid the miscue, avoiders would retain the comma.

The following usage recommendation by an avoider further illustrates the approaches:

Knights wore metal shoes, and gloves called gauntlets.

Point in question, the comma after shoes. Mark Nichol, the recommender, points out that without the comma the sentence says shoes and gloves are called gauntlets. Since I belong to the clarity-enhancement school of thought, I find Mark's practice sloppy and obfuscating; I abjure sticking a comma wherever meaning preservation requires. Separating a group of words to avoid a specific confusion muddies the water elsewhere; here, it submerges the central assertion that knights wore both metal shoes and gloves. The author tries to employ a punctuation mark to do unsuitable work, work only words can perform. The sentence rewritten according to enhancer sensibilities,

Knights wore metal shoes and also gloves called gauntlets.

The contrast illustrates the respective strengths of confusion avoidance and clarity enhancement as systems. Avoidance offloads to the comma some of the semantic burden carried by words, achieving concision by compromising clarity.

On the irreversibility of writing: Procrastination and writer's block—Part 3. Solutions

To develop a case theory, legal writers profit from deep thought, which they can't turn on at will. These stages depict it:

1. Immersing in the subject, typically legal research;

2. Thinking concretely at a local level, as necessary to refine the research process but insufficient to attach the writer to a theory formed ahead of its basis;

3. Maintaining a reflective and receptive attitude toward the subject for days (only after completing most research);

4. Conceiving an integrative idea (a deep thought), without its immediate instigation;

5. Attending to the thoughts following (but not by inhibiting potentially relevant competing lines of thought).

Hence, the problem: the busy attorney can’t drop everything when blessed with a breakthrough deep thought that evokes more thoughts. Busy attorneys can note the deep thought, but they can’t follow it when it’s fresh. Nor can they afford maintaining a reflective attitude over a span of days. Because attorneys can’t randomly interrupt their workday, the unstructured lifestyle of a writer is more compatible with deep thought, a reason ghostwriter may produce, all else being equal, work superior to attorney’s.

Deep thought isn’t the only way to stave off premature commitment, although it might be most powerful. In free writing, the writer records every thought, while avoiding preoccupation and premature structure. Free writing is hard, and it may prove impossible for a slow typist. You can combine deep thought and free writing; then deep thought should come first.

Trouble deciding between the alternatives, deep thought and free writing? This correlation might help: personality traits distinguish free writers from deep thinkers. Extraverted personalities, seeking external engagement, do better with free writing; introverts with deep thought. Deep thought has one advantage over free writing: it dedicates more mental resources (such as working memory) to thought rather than—as happens no matter how fast the typist—draining resources by typing.

Bryan Garner (The Winning Brief) proposes another method for avoiding premature theorizing, the "whirlybird," popularly called mind mapping. A mind map is an outline that maximizes the amount of information a page displays. (You can see an example of a mind map.) Aficionados are prone to over-rate mind mapping as a creativity device. Although Garner uses mind mapping in the “madman” phase of the writing cycle, it’s more suited for trolling memory. In Garner’s terms, it best serves the “architect" phase.

If deep thought or free writing have laid the groundwork, the writer will continue to conceive deep thoughts while paragraph writing, which compares favorably with mind mapping in fostering creativity. Nobody has explained why paragraph writing beats outlining as a thinking tool. (Few have even noticed.) I offer this conjecture. Paragraph writing encourages deep thought because in finding the right word, the writer unconsciously generates a lexical selection pool. This goad to the unconscious generation of ideas is the missing ingredient in mind mapping and outlining, which discourage linear thinking for spans sufficient to escalate the unconscious production of alternatives.

Deep thought and free writing are options when the misery of procrastination informs you that you aren’t prepared to write—but always keep in mind, they’re no remedy for shallow research, in legal writing the most common cause of procrastination.

On the irreversibility of writing: Procrastination and writer's block—Part 2. The unexpected cause

Even without understanding why, writers know that writing's traces, like Internet postings, are often indelible. Knowledge—that writing without enough time or ideation can set you back—is often the immediate source of blockage. Forgetting what you know is, consequently, one way to surmount a procrastination problem. Assigned a difficult project and subsequently experiencing fallow, the writer may profusely thank an advisor bearing the message, "get anything down." The get-anything-down writing panacea won't improve the quality of the project subjected to it, but as permission quieting conscience, it can augment sheer quantity.

Why assume there's a cause of procrastination specific to writing, when procrastination itself isn't? Good question. First, writing as subject of procrastination—sometimes taking a unique form, blockage—differs from most tasks agents procrastinate about, in that most procrastination concerns unpleasant tasks. Second, a generalized version explains generic procrastination, which also occurs because the procrastinator registers the present moment's prematurity, when premature performance would—by error or inefficiency—ultimately cause the work to be inferior. Writing procrastination differs from generic procrastination in that motivation itself, its arousal depending on a deadline's approach, often is the generic procrastinator's missing component.

Despite the explanation's generalizability, I'll continue to focus on forms of procrastination specific to writing, for which I prescribe forethought, the near opposite of "getting anything down." This is not to say that lawyers don't think much. Good lawyers do immense amounts of research before writing briefs, and significant thought occurs in the interstices of cases and statutes, but lawyers seldom prepare by engaging in sustained thinking. The press of business squeezes out deeper thinking, but not in the notorious, direct way, brute lack of time. Lawyers could allocate a few hours for contemplation, compensated by greater fluidity following submersion in thought. Insufficiency of work time isn't necessarily part of deep-thinking deficiencies, since the lawyer is squeezed when time is ample. The problem lies elsewhere. The kind of thinking suffering deficiency doesn't consist of organizing the lawyer's ideas, but inventing new ones; that can't be scheduled, because its onset can't be willed.

Next part: Solutions

On the irreversibility of writing: Procrastination and writer's block—Part 1. Premature composition limits thought and weakens style

"Just get something, anything down," well-wishers advise the blocked writer, but a false assumption grounds this advice. The well-wishers assume that the writing process is reversible, and early beginnings don't drive toward predetermined results. Assuming complete reversibility—what is done can always be undone—seems reasonable due to tacit analogy with some common, reversible physical acts. If I pace across the room, I can return to the starting point. The reasoning applied to pacing is sound because pacing is a reversible process. Any point reachable from point A is reachable from point B, this proven by my ability to return to point A from point B. Analogously, writing anything is held at least as good as nothing. The apparent proof: the option to delete the document and start over. Getting something down is at worst harmless, probably useful; at least some passages are bound to be, and if so, writer approaches goal. Elegant but simplistic: most changes aren't reversible. In complex or nonphysical change, irreversibility is the rule. When Humpty Dumpty fell off the wall, all the kings horses and men couldn't put him back together. Truly. What is thoroughly shattered resists all efforts at reassembly. The same holds for nonphysical change. When judge instructs jury to disregard misconduct, some doubt of success lingers about unringing the bell.

Which model, reversible or irreversible, pacing or unringing, resembles writing? Sometimes the writing process resembles return to a spatial starting point; other times, shattering an egg or unringing the bell, but regardless of practical result, the writer changes by retaining the inexpungible memory of previous work. Forms don't matter: detailed outlining complicates thematic reorganization, no matter how facile the software. Another approach to early writing, composing and combining random snippets, creates a different product than front-to-back composition: the transitions aren't as smooth as in a true first draft; corrections, as fresh.

Recent scientific research explains how premature writing constrains thought. The nonobvious finding: each recollection of an idea strengthens the recaller's belief in its truth. Dwelling on initial ideas by premature composing or outlining increases their attractiveness, decreasing their abandonability. The effect works on the principle that exposure (within limits) induces liking (a finding a bit discouraging about human rationality). As ideas become more familiar, legal writers lose perspective by falling in love with their own substance and style.

Next part: The unexpected cause of procrastination and writer's block

Sarah Palin and the disputed issue of dictionary choice

A cheap and dishonorable publicity stunt—this recognized even by a pro-Palin site—the New Oxford American Dictionary (NOAD) proclaimed Sarah Palin's refudiate "Word of the Year." NOAD recognized, in a flaming display of incoherent thought, an eccentric utterance as the year’s foremost word, when it lacks the bare status of word, inasmuch as NOAD doesn’t plan on refudiate's inclusion; neither does the all-inclusive Oxford English Dictionary. NOAD’s definition, a general sense of reject, puts the supposedly performed "lexical analysis" in question: reject, itself a broad term, doesn’t self-evidently require supplementation with a form vaguely broader.

Some commentators seem to pity Palin, providing justification as though offering their services, pro bono, as her attorney. Merrill Perlman at the “Columbia Journalism Review” speculates that maybe we need refudiate, meaning to reject based on evidence or belief, no extant word filling the role. Unoccupied conceptual space doesn't rationally justify coining a word, as most of conceptual space is denominated, of necessity, by combinations of words. Only frequent use of a concept or its foundational nature can justify, to the extent the term applies, making a single word of it. Rejection based on evidence or belief rarely needs to be distinguished from plain, ordinary rejection, and the distinction doesn't help comprehend Palin's comment. Recall, she maintained that peaceful Muslims should refudiate the plans for the New York mosque. What she meant was simply reject; there was no implied influence either by evidence or belief. She was saying: Peaceful Muslims, don't go for this idea. If there's a question about it, let Sarah Palin herself be arbiter. When the error was publicized, she replaced the term with reject—not, incidentally, the demeanor of a confident, budding Shakespeare.

While wanting to discuss the perplexing reaction of other bloggers to the award, I’m not exercised by a word’s premature acceptance. There's, rather, something deeply wrong with the logic of the construction, and its significance shouldn’t be belittled, since the nature of the mistake could inform us about the intellect of a potential U.S. President; the unity of language and thought applies here as much as to the intellectual pinnacle. As Erin Brenner at “The Writing Resource” significantly observed, refudiate is supposed to be a portmanteau word, receiving its meaning by blending its constituents, supposedly, repudiate and refute. Neither rejection based on evidence and belief nor rejection follows the formula. The former, the meaning the “Columbia Journalism Review” proposes, is narrower than either of the supposedly blended constituents, whereas the definition urged by NOAD and Palin herself, reject, is still broader than the disjunction, more so when further broadened under NOAD's "lexical analysis."

To accept Palin-defined refudiate, you must either fail to understand that disjunction creates a broader class, an error common enough in practice but not in abstract contemplation; or you must erroneously understand repudiate, refute or both. Here it gets interesting, as we’ll see that NOAD demonstrates a perverse consistency.

Palin's mistake must concern refute; it's the term harboring a well-known confusion between refute and deny. NOAD’s usage note for refute says:

Refute and repudiate are sometimes confused. Refute means ‘prove (something or someone) to be false or erroneous’: attempts to refute Einstein's theory. Repudiate means ‘reject as baseless, or refuse to acknowledge’: scholars who repudiate the story of Noah's Ark. One could repudiate by silently turning one's back; to refute would require disproving by argument. In the second half of the 20th century, a more general sense of refute developed from the core one, meaning simply ‘deny’: I absolutely refute the charges made against me. Traditionalists object to the second use on the grounds that it is an unacceptable degradation of the language, but it is now widely accepted in standard English.

NOAD endorses Palin's confusion before the fact, the confusion that allows her to consider rejection the product of blending repudiation and refutation; refute defined as deny does blend with repudiate to create the concept reject. The Palin-style confusion about refudiate requires this confusion about refute, which NOAD alone endorses. So, NOAD was engaged in more than publicity seeking after all; it was shoring up its authority after the self-inflicted damage in defining refute.

If there is an accepted tendency to confuse refutation with denial, I haven't noticed. Even if such a trend existed, it wouldn't deserve promotion. The most descriptivist of linguists should accept that the confusion involves a loss of specificity, a degradation resulting from unwillingness or inability to discriminate the precise meaning of refute. The NOAD descriptivists take the doctrine to an extreme when they equate considerations of logic with the influence of tradition, while the anti-intellectual Palin eschews reason and thus the need for and even the meaning of literal refutation. Eschewing reason, thus the need to refute anything, fosters insensitivity to the specific meaning of refute.

NOAD alone advocates refute's ersatz usage because NOAD takes a position that justly can be called extremist on the prescriptivist – descriptivist linguistics spectrum; the online descriptivist, Geoffrey Pullum at the “Language Log,” for example, favors NOAD. NOAD's extremism in linguistics creates a natural affinity with Sarah Palin's in politics—not, to be sure, political agreement; only the similarity-based affection for an extremist anti-ideologue.

The benign consequences of reading casebooks

To improve the sad state of legal writing, understanding the origin of the deficiency helps. Some teachers and authorities propose, in all seriousness, that studying badly written judicial opinions in law school harms students' style.

No one questions that law-school casebooks contain some of the foremost legal thinking in our tradition. Yet, some legal-writing scholars claim incisive thought comports with stylistic atrocity so extreme its contemplation further reduces law-students' meager literary skill. The claim conflicts with the unity of language and thought.

Bryan Garner writes in The Winning Brief:

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 undertands that language molds every human thought. Language is embedded in the very way in which you perceive the world. Thus, it's imposible for a judge to focus exclusively on the merits of a case without being affected by the language used to express those merits.

Garner addresses the relationship between writing and thought from the reader's standpoint, but no great leap is required to see implications for the writer. Thinking and writing form a unity, and expression of excellent thought in atrocious writing is inconceivable. That's the point writing authorities should make.

The severe critics of judicial style usually don't provide examples. Let's assess the quality of writing in an arbitrarily selected sample of law-school cases.

Palsgraf v. The Long Island Railroad Company (1928) is a standard textbook case by Judge Cardozo, who all except automatic rejecters of sentence complexity recognize as one of the foremost legal writers. Here's a sample:

Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all (Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one's bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. Confirmation of this view will be found in the history and development of the action on the case.

The writing is clear, concise, and euphonic; one couldn't wish for better for getting a sense of legal style, particularly stylistic variety. But then, I did choose a biased example, a truly great writer, who happened to be a judge.

Sherwood v. Walker (1887) is the mutual-mistake case concerning a contract for sale of a cow. Unlike Cordozo, the author, Justice Morse, has no reputation as a writer. A sample:

It seems to me, however, in the case made by this record, that the mistake or misapprehension of the parties went to the whole substance of the agreement. If the cow was a breeder, she was worth at least $750; if barren, she was worth not over $80. The parties would not have made the contract of sale except upon the understanding and belief that she was incapable of breeding, and of no use as a cow. It is true she is now the identical animal that they thought her to be when the contract was made; there is no mistake as to the identity of the creature. Yet the mistake was not of the mere quality of the animal, but went to the very nature of the thing. A barren cow is substantially a different creature than a breeding one. There is as much difference between them for all purposes of use as there is between an ox and a cow that is capable of breeding and giving milk. If the mutual mistake had simply related to the fact whether she was with calf or not for one season, then it might have been a good sale, but the mistake affected the character of the animal for all time, and for its present and ultimate use. She was not in fact the animal, or the kind of animal, the defendants intended to sell or the plaintiff to buy. She was not a barren cow, and, if this fact had been known, there would have been no contract. The mistake affected the substance of the whole consideration, and it must be considered that there was no contract to sell or sale of the cow as she actually was. The thing sold and bought had in fact no existence. She was sold as a beef creature would be sold; she is in fact a breeding cow, and a valuable one. The court should have instructed the jury that if they found that the cow was sold, or contracted to be sold, upon the understanding of both parties that she was barren, and useless for the purpose of breeding, and that in fact she was not barren, but capable of breeding, then the defendants had a right to rescind, and to refuse to deliver, and the verdict should be in their favor.

The case is old, and legalese was a worse problem in the past; but where's the legalese in the quoted paragraph? While lacking the beauty and concision of Cordozo's writing, this isn't writing so bad it damages law students' talents by mere reading: it's far better than what most law students can produce.

The final case helps answer the conundrum about the apparent absence of legalese in the samples. Hadley v. Baxendale (1854) is a still older case, moreover British. From a writing perspective, the case report contains two parts of vastly differing quality. Here's a sample of the good writing, in the second half of the report:

Now we think the proper rule is such as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The Judge ought, therefore, to have told the jury, that, upon the fats then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case.

Any writing instructor would be proud of a student who wrote this well. Matters look different in the first half of the case report.:

The first count of the declaration stated, that, before and at the time of the making by the defendants of the promises hereinafter mentioned, the plaintiffs carried on the business of millers and mealmen in copartnership, and were proprietors and occupiers of the City Steam-Mills, in the city of Gloucester, and were possessed of a steam-engine, by means of which they worked the said mills, and therein cleaned corn, and ground the same into meal, and dressed the same into flour, sharps, and bran, and a certain portion of the said steam-engine, to wit, the crank shaft of the said steam-engine, was broken and out of repair, whereby the said steam-engine was prevented from working, and the plaintiffs were desirous of having a new crank shaft made for the said mill, and had ordered the same of certain persons trading under the name of W. Joyce & Co., at Greenwich, in the country of Kent, who had contracted to make the said new shaft for the plaintiffs; but before they could complete the said new shaft it was necessary that the said broken shaft should be forwarded to their works at Greenwich, in order that the said new shaft might be made so as to fit the other parts of the said engine which were not injured, and so that it might be substituted for the said broken shaft; and the plaintiffs were desirous of sending the said broken shaft to the said W. Joyce & Co. for the purpose aforesaid; and the defendants, before and at the time of the making of the said promises, were common carriers of business of common carriers, under the name of "Pickford & Co."; and the plaintiffs, at the request of the defendants, delivered to them as such carriers the said broken shaft, to be conveyed by the defendants as such carriers from Gloucester to the said W. Joyce & Co., at Greenwich, and there to be delivered for the plaintiffs on the second day after the day of such delivery, for reward to the defendants; and in consideration thereof the defendants then promised the plaintiffs to convey the said broken shaft from Gloucester to Greenwich, and there on the said second day to deliver the same to the said W. Joyce & Co. for the plaintiffs. And although such second day elapsed before the commencement of this suit, yet the defendants did not nor would deliver the said broken shaft at Greenwich on the said second day, but wholly neglected and refused so to do for the space of seven days after the said shaft was so delivered to them as aforesaid.

Terrible writing, sporting the expected legalese. Why the change? The second quote summarized statements by the attorneys, such as "the first count of the declaration." The clerk compiling the introductory statement stayed close to the attorneys' language, and its inferiority is patent.

On the whole, judges write better than attorneys, and the disparity was more pronounced in mid-19th-century England. When judges write so much better, explaining bad writing by the quality of judicial product is a nonstarter.

Must zealous attorneys be committed writers?

This entry is dedicated to law-school students: new lawyers must decide on what to do when the boss demands legalese. Ray Ward at the (New) Legal Writer recently brought his readers’ attention to the issues concerning “What To Do If Your Boss Prefers Legalese.” Ray recommended Wayne Scheiss’s essay “When Your Boss Wants It the Old Way.” But Wayne’s advice is mistaken.

Wayne apologetically advises his readers that the issue isn’t worth the challenge, and he means the fruits of challenging the boss, not that winning the challenge is unlikely.

The ideas of the plain-language movement and the modern trends in legal writing are designed to make your writing clearer, easier to read, and precise. Those are important goals for legal writing. Though as a legal-writing instructor it pains me to say this, they are not important enough to risk your job over.

Wayne also advises associate attorneys to do it right when they’re given the opportunity, but everyone knows that.

Wayne commits errors of commission and omission. First, the error of commission: Wayne underestimates legalese’s scope; he presents the issue as one of “new way” and “old way,” as a style appropriate or not to a particular period. But legalese encompasses practices as diverse as prolixity, irrelevance, and boilerplate. Its use engenders still further problems, including the analytic shortcomings of over-citation, superficiality, and over-inclusiveness.

These diverse practices and shortcomings are the main problem today, when doublets, triplets, and archaic expressions like "comes now" mainly characterize the writing of pro-se litigants and, consequently, dislodge easily. When you take account of the vast scope of legalese and its multifarious effects, then you can see contesting it is worth the fight, which you might decide creates an ethical imperative for a truly zealous advocate—isn’t decent writing part of proper representation?—but the only way you can win on the broad theater of legalese is by convincing your boss you’re the better writer. Good luck. Even if you’re clearly superior, your boss’s ego will dictate the terms.

An associate attorney’s only recourse is actively avoiding employers who demand inferior work; this is the advice Wayne omits. You should also know what law schools generally don’t impart: when it comes to writing, many employers demand inferior work because they can’t accept that they’ve been writing poorly, particularly if they’re informed by an employee, whom they’re paying to serve subordinately. (It’s remarkable how attitudes change when you produce work under contract rather than as an employee.) Some prestigious employers are terrible writers, and law school doesn’t prepare students for the sheer egotism of many lawyers who employ associates.

When interviewing, job candidates seriously committed to improving their legal writing should question the interviewer about the firm’s writing practices and policies. I advise declining employment when the job requires inferior writing.

The Typographical Rear Guard

Absence of controversy usually lets matters of typography elude Disputed Issues. Typography is an engineering discipline resting on centuries of experience and a firm scientific basis. Occasional controversies arise at the periphery, such as specific font choices, but core typographical matters are well settled, including: Should margins be justified or ragged right? and How many spaces should separate sentences? Yet, lawyers ignore the typographers’ answers:

• Use a ragged-right margin for word-processed text.
• Never use more than a single space between sentences.

The predominance of justified margins in law is easy to understand. Ideally, justified margins make columns appear columnar, a look the ancients pursued by lining up both the left and right margins when copying manuscripts. The ancient pedigree of the columnar form testifies to its inherent pleasantness. Today, trade books are usually printed justified, and proponents of typographical modernization might themselves have introduced some confusion into the discussion by urging legal writers to emulate the publishers in using only a single space to separate sentences. Doing as the book publishers is good advice for sentence spacing and bad advice for text alignment because of the strengths and limitations of desktop products. Short of the costly solution of professionally printed briefs, the decision whether to use justification or ragged-right margins depends on nontechnical considerations: Is it more important to prepossess the client or persuade the judge? The time the lawyer's staff devotes to create an almost-readable document impresses some clients, but reading a word-processed document with justified margins is an annoying experience.

Unexpectedly, the superiority of two spaces between words is upheld by some informed legal writers, who after being set straight, switched to one space between sentences and then decided two spaces were better after all. Sometimes the reverters complain about rare circumstances where a single space is misleading. More often, they conclude that, despite its origins in the obsolete typewriter’s shortcomings, the extra space aids comprehension: the right idea for the wrong reason. (See Comments.)

Young lawyers’ loyalty to the old two-space typewriter convention is puzzling. Two biases seem relevant: 1) the more-is-better evidentiary heuristic and 2) false assumptions about the mechanics of reading. The more-is-better heuristic, the disposition to think that supplying more evidence (such as an extra space) necessarily produces a higher level of certainty, accounts for the tendency of reverters to stress occasional typographic anomalies, while not considering their counterparts. Supporting this explanation is the practice in the 19th century of placing a super-space, larger than the two spaces recommended for typewriters, at the ends of sentences. Redundant evidence and the importance of processing speed make applying the more-is-better heuristic misleading.

Craving stronger cues for sentence endings expresses a mistaken theory of the reading process—or fault in the process itself—which confuses the units for eye fixations with those involved in parsing meaning. While the sentence is the basic unit of meaning, eye fixations are blind to meaning, as reader can’t distinguish meaningful units until brain analyzes input. Using the extra-large space as the automatic boundary for eye fixations, a tendency promoted by extra spacing, slows reading. Efficient readers read through the period and space.

Refudiate [sic] pomposity

3rd entry in the Pomposity Series

Had it been me, I would have pleaded typo! and changed the f to a p. That may show that, like Palin's Obama, I lack "cojones"; Sarah Palin stood her ground, and urging an attitude toward the lexicon more libertarian than conservative, she reveled in the Shakespearean freedom to coin new words on Twitter, igniting a discussion more interesting than her political opinions. Did Sarah Palin err as a communicator in using the neologism refudiate? What does her usage and deportment regarding it categorically reveal about her character? These are the debate’s two central issues, which I propose to take seriously.

Refudiate is a blend, a portmanteau word, but which words does the formation blend? Most readers debating Palin’s coinage assumed refudiate blends repudiate and refute, but some readers thought repudiate and reject. Reject would be a nonstarter except Palin changed the message to reject within a few hours. Another uncertainty, mostly unnoticed, is that refuse is a strong competitor, better than refute (which is wrong). Shakespeare’s coinages didn’t burden the listener with uncertainty about the words he blended.

Since Palin relies on blending for meaning, the ambiguity is unfortunate, but more so, ironically, is the ambiguity’s ultimate harmlessness. Since the reader doesn’t need to know what the blend adds to the meaning of repudiate, the blend creates nothing new: repudiate or reject does the job equally well. If Palin had intended a specific meaning, she didn’t convey it effectively: given opportunities, Palin never offered to define refudiate.

Ray Ward at The (New) Legal Writer says Palin escapes demerit because her neologism didn’t detract from the message’s clarity, but it’s hard to see how this could be, when even a typo tends to confuse. To the point, redundancy confuses; to construe the writing, the reader tries to find some justification for using two expressions. The reader’s reaction to redundancy is to distinguish the meaning of the redundant expressions. Different word, different sense, is not only a presumption of legal interpretation but an assumption generally involved in textual interpretation. A blend of two words whose intended meaning corresponds to one or each of the blended words is as redundant as consecutive synonyms.

This redundancy can illuminate aspects of Palin's character because it’s a redundancy of a special type, the type prevalent in legalese. Refudiate is a contraction of legalese's dreaded doublet or triplet. Had Palin chosen not to coin a word by blending synonymous constituents, she would have said:

Peaceful Muslims, pls repudiate, reject, and refute.

Synonyms strings—doublets, triplets, and longer—contribute to legalese’s pompous form. Common in official ceremonies, synonym strings are a form of bullying hyperbole, invoked ceremoniously by officialdoms. The truth, the whole truth, and nothing but the truth. Lawyers adopt legalese, including traditional synonym strings, as an outlet for pomposity, and refudiate is as pompous as any conventional triplet. (See “Legalese: Pomposity Ritualized.”) Plain writing disables legalese as defense against actual pomposity, resulting in its florid eruption, and neologisms and malapropisms with embedded synonym strings function for Sarah Palin as legalese functions for pompous lawyers. When criticism interrupted Palin’s preferred style for expressing pomposity, the result was the same as when an actually pompous lawyer tries plain writing. (See “Actual Pomposity.”) With the defense blocked, a more direct pompous form emerged, which observers recognized as pompous. Palin’s overbearing refusal to admit petty error and her presumptuous Shakespeare self-comparison were eruptions of actual pomposity.