Doff thy wig

People who belong to a group tend to take on various external trappings of that group. For example, in general, lawyers dress differently than MMA fighters, and not because members of the former group happen to share a love for silk ties or scarves while members of the latter group do not. Clothing, hobbies, vices, choice of cars, taste in restaurants, and many other things can in part be markers of class, vocation, and other social positions.

This little sociology lesson is relevant to this blog only to the extent that it influences writing. And it certainly does influence writing. I have never seen the comparison done, but I am sure that an analysis of people’s writing before and after law school would show a sharp increase in jargon, needless elaboration (e.g. “on or about”), and pretentiousness. This is not because law school softens your mind, but because it initiates you into a new group: Lawyers. It’s very easy to make the mistake of adopting, as part of the professional plumage, the same awkward and barely-penetrable style you’ve spent the last three years reading. After all, the very first words that you read in law school were probably these, or something just as bad:

Replevin for a cow. Suit commenced in justice’s court; judgment for plaintiff; appealed to circuit court of Wayne county, and verdict and judgment for plaintiff in that court. The defendants bring error, and set out 25 assignments of the same.1

Don’t do it. Wear the suit, drive the car, even buy the country club membership if you must, but don’t write like a constipated old man with a powdered wig. If people become confused because they can still understand you, show them your bar card.

1  Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (Mich. 1887).

Tell the judge your argument is weak

At least nine times out of ten, that weak argument in your brief should be on the cutting room floor instead. Sometimes, though, you have to make it. For example, sometimes your only path to victory is a three-part legal argument, with one part based on a questionable legal proposition. If so, you just have to do your best with it.

If you have to make a weak argument, consider admitting that explicitly in your brief. The judge probably isn’t going to get farther than your opponent’s brief without realizing that yours is weak on that point, and a weak argument saps the credibility of your strong arguments. The judge will wonder if perhaps your other arguments conceal weaknesses as well.

One bold solution to this problem is to frankly acknowledge the weakness of the argument. For example:

No court in this jurisdiction has yet excluded an admission made after less than an hour of questioning, and language in Cerillo suggests that lack of sleep is irrelevant when an interrogation lasts less than six hours, but this case has extraordinary features that warrant exclusion nonetheless.

Almost any judge who reads a sentence like that will respect your honesty, will trust what you say more because of it, and will probably be more inclined to give your tough argument a fair look.

A TOC like a sawed-off shotgun

I’ve said many times here that the best way to argue your case is with simple and direct language. Here’s a good example from a current Solicitor’s General brief before the US Supreme Court. The SG’s job here was to argue that a felon’s possession of a sawed-off shotgun counted as a “violent felony” under a federal law that would increase prison time if it did. Part of the table of contents is as follows:

shotgunTOC1

This is pretty good work. It lays out a strong case for why sawed-off shotguns are dangerous, and does so in reasonably direct language.

But the brief should be better. The table of contents of a brief about why sawed-off shotguns are dangerous should be something you could read to Al Capone on the way to a hit without being smacked in the head for sounding like a professor. Why, for example, “short-barreled shotgun” rather than “sawed-off shotgun”? The brief itself makes clear, later, that the words are synonyms. Why the weak “individuals who take possession” in 1(b) and the bizarre language of 2(a)?

Here’s one possible rewrite:

shotgunTOC2

A lot of lawyers become uncomfortable when they read something that has been rewritten in simple language. They don’t think it sounds lawyerly. They don’t think their client will want to pay their hourly rate to create sentences that a third-grader could understand. It doesn’t make them feel smart. But it works. Everyone who reads the second table of contents will understand immediately what the argument is and will see its logic.

There’s another thing about the second version. It is simple enough that it unmasks a good deal of redundancy in the previous version. 1(a) and 1(b) are pretty much the same thing. 2 and 2(a) are the same. 1 and 2 are quite similar. Perhaps the points made in the corresponding sections of the brief itself differ from one another enough that the writers could write better TOC sentences about them. If so, they should do so. If not, they should simplify the structure of the brief. Much redundancy and confusion can be concealed behind complex words, even the relatively straightforward first version above.

Gunston Specialty Holding Corp. LLC

Let’s say that you represent Gunston Specialty Holdings Corp. LLC (often abbreviated in company emails and internal documents as GSHCLLC). How should you refer to them in a brief?

Long-time readers of this blog are now shouting in unison “Gunston!” Shorter is better for a host of reasons, including that “Gunston” sounds a bit like a person—or at least something that might have some human attributes—while “Gunston Specialty Holdings Corp. LLC” does not, and GSHCLLC sounds like something you have to type in to get a website to accept that you aren’t a robot.

There’s another excellent reason for short names, from well-validated psychological research. When you write your brief about Gunston, you are introducing the judge to an unfamiliar name and then asking her to learn things about it and make decisions about it. This is a difficult mental task. Your judge stores information like “the name of the entity we’re talking about” in short-term memory. Short-term memory can’t hold much. When you stress it with a long string of words, or something that makes no lexical sense like an acronym, it decreases the judge’s ability to pay attention to the rest of your message and makes it harder to comprehend what you are saying.

When something is hard to comprehend and takes too much work to process, people tend to reject it. If your argument is confusing because of aesthetic details like your insistence on using awkward titles for the entities involved, you have made it less persuasive.

The effect of things like this is not 100%, of course; they function at the margin. A bad argument with nice short names is still unlikely to persuade; an excellent one about SXRCJSDS will probably still work. But it’s your job to improve the odds of persuasion, particularly in the close cases that are the most common kind to be presented for adjudication.

The affect heuristic

There is a well-documented psychological bias called the affect heuristic. When we observe one virtue in someone, we tend to ascribe other virtues to them as well. One notorious example is that if someone is attractive, we tend to think that they are also more competent, wise, clever, and so on. Repeated studies have confirmed the existence of this bias, and also that people tend to agree that other people are biased in this way, but that they themselves are not (but the studies show that they are, despite their protestations, and even after having been made aware of the bias).

The affect heuristic is one reason why presentation matters. Logically, of course, a brief can be attractive, well-formatted, and free of typos, but also confusing, stupid, and wrong. But if your brief has the first three attributes, that will make it at least somewhat more likely that the judge won’t think it has the last three.

We all learned in third grade that a clear plastic binder won’t salvage a lousy book report, and neither will careful formatting save a brief that is bad on the merits. But once you’ve gotten the content right, pay attention to the presentation. It matters.

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