Louisiana Civil Appeals

Legalese makes you look inferior

Lawyers who communicate in plain, straightforward language are perceived as more intelligent and more capable than those who attempt to communicate in legalese. Now there’s another study confirming this fact. The study is described in this blog post by the British Psychological Society. Here’s the money quote:

[A]ccording to a series of studies published in Organizational Behavior and Human Decision Processes, those who are of low status within a group are also predisposed towards jargon-filled language. Zachariah Brown at Columbia University and colleagues found that these people appear to want to compensate for their lowly position by using language that is often associated with high status. 

If you’re interested in reading the study itself (and don’t mind shelling out $39.95 for it), follow this link.

Are longer briefs and cross-appeals helpful?

For appellate lawyers looking for a diversion from the COVID-19 emergency, here is an article that bucks some of the conventional wisdom on appellate practice: Inputs and Outputs on Appeal: An Empirical Study of Briefs, Big Law, and Case Complexity, by professors Adam M. Samaha, Michael Heise, and Gregory C. Sisk. The article reports the results of a study of briefs and opinions in civil cases in  in the federal Second, Eighth, and Ninth Circuits. About two-thirds of the article describes the authors’ methodology, which will be more understandable to statisticians than to lawyers. The article is just a draft; it will undergo some vetting before being published. With that caveat, two of the authors’ conclusions jumped out as contrary to conventional wisdom.

First, in briefing, shorter is not necessarily better. To the contrary: the longer the brief, the greater the chances of reverse. The authors caution that this finding does not mean that prolixity is persuasive. “It remains possible,” they caution, “that the appellant brief length is simply a better proxy for the unobserved vulnerability of trial-level decisions than are our measures of complexity and our controls.... So we are not in a position to recommend that lawyers start writing longer briefs with no other measure of exposition quality. At the same time, we have no evidence that shorter briefs are more effective.” My suggestion: make your brief as long as it has to be: no longer, no shorter.

Second, a cross-appeal (or in Louisiana, an answer to the appeal) is not a good strategy for an appellee to obtain an affirmance. To the contrary, the presence of a cross-appeal correlates positively with reversal, but not necessarily in the cross-appellant’s favor. This, in itself, shouldn’t be surprising. As the authors point out, “Once a cross-appeal is lodged, both sides are attacking the trial court in some respect.” They also caution that, in itself, the cross-appeal may not be the cause of reversal; it may be that attorneys file cross-appeals in cases where the risk of reversal is already high. My suggestion: don’t take a cross-appeal or answer the appeal with the idea that you’ll increase the chance of affirmance by compromise decision. The data suggests that, faced with cross-appeals, appellate judges do not compromise by simply affirming; instead they’re more likely to reverse—and the direction of the reversal may not be in the cross-appellant's favor.

LASC responds to the COVID-19 virus

The Louisiana Supreme Court’s web site has a page of court information and resources related to the COVID-19 virus. Go there for information about access to the courthouse, March oral-argument dockets, and other information.

How weak arguments drag down good arguments

Which brief is perceived as stronger?

1. A brief with three strong arguments
2. A brief with the same three strong arguments plus one weak argument

Appellate judges and experienced appellate advocates will probably say that the first brief will make a better impression on the court than the second. But are they right? Science says they are.

In his book Thinking, Fast and Slow, psychologist Daniel Kahneman describes an experiment where subject were asked put values on two sets of dishes. One set had 24 pieces, all in good condition. The other had 40 pieces, including the same 24 pieces in good condition plus 16 additional pieces, but with 9 of the 16 additional pieces broken. When presented with both sets, subjects logically tended to put a higher value on the second set. But when subjects were asked to evaluate only one set, the subjects evaluating the first set (24 pieces in good condition) gave higher values than subjects evaluating the second set (31 pieces in good condition plus 9 broken pieces). In short, the inclusion of the broken pieces dragged down the perceived value of the entire set.

Kahneman describes another experiment yielding similar results. The experimenter auctioned off sets of baseball cards. Some sets had 10 high-value cards; other sets had 13 cards, including the same 10 high-value cards plus 3 additional cards of lesser value. The result: people were willing to pay more for the set of 10 high-value cards than the set of 13 cards that included the same 10 high-value cards. Again, inclusion of the lower-value cards tended to drag down the perceived value of the entire set.

What’s going on here? Kahneman says that the test subjects assigned value to the entire set of dishes or baseball cards by averaging the items included in the set. When the average value of any one item in the set was high, test subjects put a higher value on the entire set. Conversely, when the average value of any one item was lower, test subject put a lower value on the entire set.

A judge reading a brief may make an analogous valuation. If this is so, then a brief with three strong arguments will be perceived as stronger than a brief with the same three strong arguments plus one weak argument.

 

Why plain English is more persuasive than legalese

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.

Fonts are more important for persuasion than you think.

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.

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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.