The U.S. Supreme Court has issued a set of guidelines governing amicus briefs filed in that court, supplementing SCOTUS Rules 33.1, 34, and 37. To download a copy, follow this link.
This morning I gave a one-hour presentation on appellate practice at the Louisiana Bar Association’s Bridging the Gap seminar for new lawyers. For them and anyone else who may be interested, here are some links to downloadable PDFs:
During the presentation, I talked about over-reliance on forms in legal writing, including brief writing. Here’s a link to an article on that topic that I wrote a few years ago: Immortal Forms: the Vampires of Legal Writing.
If you’re new to the practice of law (or know someone who is), then you may be interested in the Louisiana State Bar Association’s “Bridging the Gap” seminar, to be held on October 16–17 in New Orleans. This is a great seminar for anyone who just passed the Louisiana bar exam. I’m on the program for October 17 to talk about appellate practice. For more information about the seminar or to register, follow this link.
Here’s a chart I’ve prepared for an upcoming CLE presentation showing the per-judge workload of each Louisiana Court of Appeal for 2018. (Click on or touch the chart to see it full-sized.) This shows, for each circuit, the total numbers of cases (blue), appeals (orange), and writ applications (green), divided by the number of judges in each circuit. The numbers of judges for each circuit come from La. R.S. 13:312.1. The other numbers come from the Louisiana Supreme Court’s 2018 Annual Report. We see that, any way you slice it, the First Circuit is by far the busiest appellate court in the state, and its judges have the heaviest workload.
Today, I happened to come across the La. Supreme Court’s decision in Mayeux v. Charlet, 2016-1463 (La. 10/28/16), 203 So. 3d 1030. Footnote 5 of Mayeux contains a lengthy quotation from Unwired Telecom Corp. v. Parish of Calcasieu, 2003-0732, pp. 8–10 (La. 1/19/05), 903 So. 2d 392, 400–01, discussing the discretionary nature of the supreme court’s jurisdiction. It’s a reminder that, while the writ-grant considerations in Rule X are important, they are not a jurisdictional test and do not limit the supreme court’s jurisdiction. Rather, “the constitutional grant of supervisory authority to [the supreme] court is plenary, unfettered by jurisdictional requirements, and exercisable at the complete discretion of the court.” The footnote includes citations to several cases and two law-review articles discussing the supreme court’s exercise of discretionary jurisdiction, including cases where the supreme court has granted writs even though the relator had not exhausted its remedies in the lower courts. It’s worth tucking away for future reference, for cases that appear writ-worthy but don’t quite fit any of the Rule X considerations.
Every decent book on legal writing or writing in general advises you to strive for simplicity: short words, easy-to-follow sentence structure, coherent paragraphs, etc. Today, most lawyers probably know that plain language fosters effective communication: the reader is more likely to understand what the writer is trying to say. If the only thing that writing in plain language did were to make the message easier to understand, that would be reason enough to write plainly.
But for lawyers whose business is persuasion, the importance of plain language is more profound. Readers judge the character and intelligence of the lawyers themselves by the quality of their writing. They associate plain language with intelligence and credibility, and they associate foggy, needlessly complicated writing with a lack of intelligence and credibility.
This fact was shown years ago in a study by Robert W. Benson and Joan Kessler, Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing, 20 Loy. L.A. L. Rev. 301 (1987). In their study, they asked judges and court staff attorneys to rate two versions of the same paragraph: one in legalese and the other in plain English. The readers tended to rate the legalese version as unconvincing and unpersuasive. They also tended to rate the authors of the legalese passages as being ineffective advocates from non-prestigious law firms. In other words, they formed opinions about not only the writing, but about the credibility of the author.
A 2006 study by psychologist Daniel M. Oppenheimer confirmed that readers tend to negatively evaluate the authors of needlessly complicating text. Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly, 20 Applied Cognitive Psychology 139 (2006). In this study, groups of readers were given different versions of various writings, one in simple language and the other in more complicated language. The readers consistently rated the writers of the more complicated version as less intelligent. Oppenheimer’s conclusion: “write clearly and simply if you can, and you’ll be more likely to be thought of as intelligent.”
Why are plain-language writers thought of more highly than writers of needlessly complicated language? Oppenheimer’s study suggests that the answer is in “processing fluency. Simpler writing is easier to process, and studies have demonstrated that processing fluency is associated with a variety of positive dimensions,” including truth, confidence, and liking. Daniel Kahneman describes the same idea as “cognitive ease,” as opposed to “cognitive strain.” (See my last post.) According to Kahneman, anything that contributes to cognitive ease makes the reader more likely to believe the message and trust the messenger. One thing that can contribute to cognitive ease is plain, simple language. Complicated language has the opposite effect, causing the reader to experience cognitive strain, making the reader more vigilant and suspicious of the message and the messenger.
There’s a link between these modern psychological studies and the ancient writings of Aristotle on persuasion. According to Aristotle, ethos—the character of the speaker—is critical to persuasion. The speaker (or today, the writer) gains the audience’s trust by creating the impression that he or she is a person of intelligence and truthfulness. This impression can be made through the argument itself. E.g., Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 19 (4th ed. 1999). The modern-day psychological studies show that plain language builds ethos; it makes the writer appear more intelligent and credible. This, in turn, makes the reader more disposed to accept the argument.
I have no particular comment on this recent unpublished decision by the U.S. Fifth Circuit except that the plaintiff-appellant calls himself “The King/Morocco” (apparently including the slash).
Everyone should know that an attractive, highly legible font makes a good impression on the reader. But can font selection work on a deeper level, making your brief either more or less persuasive? It can.
This insight comes from a book I’ve been reading by Daniel Kahneman, Thinking, Fast and Slow. In one chapter, Kahneman describes the concepts of cognitive ease versus cognitive strain. Cognitive ease describes the reader’s state when the reader feels that the message is familiar, easy to accept, and true. Cognitive strain describes the opposite state, when the reader feels that the message is unfamiliar and more difficult to accept. As Kahneman describes it, “When you are in a state of cognitive ease, you are probably in a good mood, like what you see, believe what you hear, trust your intuitions, and feel that the current situation is comfortably familiar.” On the other hand, “[w]hen you feel strained, you are more likely to be vigilant and suspicious ....”
Many factors can contribute to the reader’s cognitive ease, including the reader’s good mood, sense of familiarity (the feeling, “I knew that”), and having been primed. Another factor is clear display: a message printed in a clear font on high-quality paper. Anything that you do to foster cognitive ease and reduce cognitive strain will make your message more persuasive.
One way to foster cognitive ease is to make the writing as legible as possible. This means using the highest quality, most legible font available, printed in an easily readable size on high-quality paper. Experiments have shown that a sentence printed in a highly readable font is more likely to be believed than the same sentence written in a less legible font.
That’s what Kahneman suggests. Here’s my additional suggestion: For first drafts, use an ugly, less legible font (such as Courier); wait for the final draft before converting to a gorgeous font. Why? Because when you are editing a first draft, you don’t want cognitive ease; you want cognitive strain. You want to induce skepticism and vigilance in your editors (including yourself).
Kahneman describes an experiment where subject were given a set of three brain teasers to solve. Half of the subjects got the puzzles in a legible font; the other half got the same puzzles in a small font with poor contrast. The difference in the error rates was striking: 90% of subjects who got the puzzles in a legible font made at least one mistake; the error rate dropped to 35% when the font was barely legible.
So if you want your editors to read your drafts with a critical eye, don’t make the drafts impossible to read, but do make them a little harder to read than the final product. Put them in Courier. After the draft has been thoroughly edited, convert it to the best font available before finalizing.
p.s. (30 Aug. 2019): Several years ago, I wrote an article suggesting the use of ugly fonts for early drafts. Here’s a link to the PDF.
I recently started reading Thinking, Fast and Slow, a book by Daniel Kahneman. Although I’m only a fraction of the way through the book, I’ve read enough to recommend it. In future posts, I’ll write some tips that I’m gleaning from the book. Meanwhile, the message is this: If you’re in the business of persuading people, you must read this book.
I been in the right place, but it must have been the wrong time.
Here are three principles of briefwriting that I try to follow:
- Every part of a brief should contribute to persuasiveness.
- Not every part of a brief should be argumentative. Argument should be confined to, well, the argument (and summary of the argument).
- Argument in the wrong place (for example, in the jurisdictional statement) detracts from persuasiveness.
Probably everyone would agree with item # 1. Some people may need convincing on items # 2 and #3, so I’ll give it a try.
Way back when, Aristotle described four modes for creating persuasive arguments: ethos, logos, pathos, and kairos. Ethos refers to the credibility and trustworthiness of the one giving the argument. Logos refers to logic, to the syllogistic thinking we all learned in law school. Pathos refers to establishing common ground with listener or reader. See Linda L. Berger and Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science 5 (2018). As the title of this post suggests, I want to talk about kairos and how that figures into briefwriting.
Kairos refers to the appropriateness of timing and setting for the argument. Id. To paraphrase Dr. John, it means not only saying the right thing, but saying it at the right time. According to the editor of this web page, “Kairos ... is based on the thought that speech must happen at a certain time in order for it to be most effective. If rhetoric is to be meaningful and successful, it must be presented at the right moment, or else it will not have the same impact on ... the audience.”*
I’ll take it a step further and propose this: In a brief, argument in the wrong place or at the wrong time detracts from persuasiveness. Why is that? Because when the reader is reading, say, the jurisdictional statement, she is not receptive to argument; she just wants to know whether the court has jurisdiction over the appeal. So if she hits a patch of argumentative language in the jurisdictional statement, she filters that out or skims past it. As a briefwriter, I don’t want my reader to get in the habit of filtering or skimming. I want to encourage the reader to read every word; I want to get her in the habit of nodding in agreement or, at least, thinking that every word is worth reading.
Every part of the brief can be persuasive if it does exactly what it’s supposed to do, and does so without inflicting pain or boredom on the reader. Doing this builds ethos by establishing the briefwriter’s knowledge, credibililty, and trustworthiness. It also builds pathos by showing that the briefwriter understands and is trying to meet the reader’s needs. Putting argument where it doesn’t belong has the opposite effect.
In the coming days, I hope to write a series of posts on how to make the non-argumentative parts of the brief persuasive. Well, maybe not the certificate of service, but everything else.
*Yes, I know it’s just Wikipedia. But the statement makes sense, and I don’t have a better source handy at the moment: my copy of Aristotle’s Rhetoric is at home.