Disputed Issues

Enjoyability

2012-01-16T22:00:00.000-08:00

Explaining a contest award for “Best Writing,” law-technology blogger Dennis Kennedy performed an “actually pompous” speech act: “I like what I like”—the arrogance involved, labeling his personal tastes as “best,” whereas “Best-liked Writing” would be unexceptionable. But “pompous” might be too mild a description if Kennedy thinks that assessing writing style is expressing one’s tastes, which vary less for style than for content.

Liking a writing style usually means enjoying it, and even for legal writing, enjoyability rather accurately measures effectiveness. The measure isn’t perfect. The Writing Virtues, truly criterial, may not line up perfectly with enjoyability; in legal writing, you shouldn’t sacrifice too much Concision for enjoyability’s sake. Although imperfect, the equation between enjoyability and effectiveness is strong to where—if the briefs convey the same information—the better-written brief is usually more enjoyable to read. Comprehension is a motivated activity, and enjoyment is the only incentive a writer can reliably offer.

Dennis Kennedy, then, is correct that his degree of enjoyment measures the writer’s skill. His failing is the common one that’s responsible for why writers are rarely paid what they’re worth: he can’t distinguish his enjoyment of the writing itself from his enjoyment of its content. Readers know when they enjoy, but they usually don’t know what they enjoy. They know they liked an article, but their self-rated enjoyment of the writing is overshadowingly biased by how much they enjoy the content, so that many readers can tell which article is written better only when equally enthused about the contents of each: in persuasion, agreeing with the message; in exposition, finding interest in the information.

Content can be so distracting that reading authors whose substance doesn’t much interest you is a useful exercise, for it lets you focus on the writing style. I read Thomas Hardy for style, although I don’t care much for his romantic tragedies. Good writing, taken pure, is a tonic.

You might think legal writers supplying their work to attorneys have an easy sell, since the attorney readers are interested in their cases, and the writers are persuading favorably. Unfortunately for legal writers who are employees or contractors, a trial attorney often most enjoys what’s most strongly favorable to his case. The result is a bias toward shallow analysis and overstatement. Attorneys should have a better opportunity to discern able writers than many other employers of writers have, since attorney interest in the subject matter is a given, but a trial attorney’s sense of enjoyability is often yoked to an exaggerated confidence in the case’s strength.

Punctuating for prosody or for syntax—With a dash of the dash

2011-12-22T19:39:00.000-08:00

My earlier discussion of heavy and light punctuation encompassed only today’s trivial differences in punctuation density, but the differences are much greater across the centuries. Samples from Ben Jonson illustrate the early 17^th century’s predominant style of punctuation, when writers punctuated based on prosody instead of syntax, marking wherever the reader should pause.

If you, my Sonne, should, now, preuaricate,
And, to your owne particular lusts, employ
So great, and catholique a blisse; Be sure,
A curse will follow, yea, and ouertake
Your subtle, and most secret wayes.

This earlier English literature shows exactly what’s wrong with the practice of punctuating whenever you hear a pause: by contemporary standards, you’ll over-punctuate.

The history of written English runs from heavier to lighter punctuation and from reliance on prosody to reliance on syntax. Logically, prosodic punctuation and heavy punctuation need not go together. To lighten punctuation, it's true you must omit punctuating some pauses, but in principle, punctuating for prosody allows degrees of punctuation density; presumably, you would punctuate the longer pauses and omit the shorter. Perhaps English didn’t follow that route because differences in pause length can be hard to ascertain reliably, but the reason for syntactic-punctuation’s lightness is clearer: an excess of syntactic punctuation confuses readers because syntactic elements are nested, whereas our means of punctuating allows only two levels within a sentence. Prosodic punctuation can be dense without confusion, since its only burden is telling the reader to pause.

The main reason punctuation is increasingly based on syntax is that writing is increasingly distinct from speech. How readers should render passages aloud matters less today; how readers should parse passages matters more. Although syntactic punctuation dominates, some writers disagree—and I don’t make any claims about the punctuation appropriate to fiction, dialog being peculiarly prosodic. Also, the purposes behind common punctuation practices conflict, with some accepted practices being based on prosody. The rule that a comma follows any introductory element is a prosodic rule, in contrast to a purely syntactic rule that would omit the comma after a restrictive modifier, such as an introductory “if” clause. Another example of contemporary prosodic punctuation is the use of a comma within a compound predicate where the verbs strongly contrast. A third example countenanced by some writers and grammarians uses commas for emphasis, a prosodic consideration that conflicts with syntactic rules under which commas set off nonessential, descriptive elements—usually amounting to de-emphasis.

Conflict between prosodic- and syntactic-punctuation practices sometimes confuses. The fundamental error of comma usage can be diagnosed as due partly to an appetite for prosodic punctuation: a reader often pauses before a coordinating conjunction. Another confusion leads to setting off restrictive adverbial clauses with commas. Still another prosodic temptation, which comes from the need to breathe when you read aloud, is to punctuate long passages. Temptations to separate a restrictive adverbial clause and to punctuate a long passage here reinforce comma-usage’s fundamental error of punctuating a compound sentence element. (HT: an old posting in WordReference.com.):

Maury licked his lips as Cherise, the dental assistant, leaned over him to adjust the table holding the sharp, shiny tools the oral surgeon would need, and wished his rotten old teeth were strong enough to pierce her lovely jugular.

The forum debated whether a comma goes after need. One commenter pointed out that it's ambiguous whether Maury or Cherise is the one wishing about Maury’s teeth, and the commenter suggested that a comma after need might clarify that it's Maury. A single extra comma doesn’t help, but a couple of commas—the other one after lips—would set off the adverbial clause beginning with as and ending with need. But we would be punctuating for prosody, using reading pauses to clarify meaning; from the syntactic standpoint, commas would improperly set off a restrictive clause. Creating prosodic breaks, such as interrupting sentence flow with a restrictive element, is the almost-exclusive function of the dash:

Maury licked his lips—as Cherise, the dental assistant, leaned over him to adjust the table holding the sharp, shiny tools the oral surgeon would need—and wished his rotten old teeth were strong enough to pierce her lovely jugular.

If, as there’s reason to expect, the trend toward punctuating for syntax instead of prosody continues, the future will falsify prophesies of the dash’s demise. As writing detaches from speech, prosodic punctuation doesn’t disappear, but writers can quarantine it within dashes.

“Decision fatigue”: Its implications for analyzing issues on appeal

2011-12-06T20:32:00.000-08:00

A controversial theory from psychology, decision fatigue carries unconventional implications for brief writing. The theory holds that the act of choosing and other acts of self-control draw on a limited store of energy, which you can only fully replenish with a night’s sleep, although drinking or eating sugar brings immediate relief. When you run out of decision-making juice, you avoid choosing or you choose impulsively, and you are more apt to lose self-control, whether by raging at someone, failing to persevere at an unpleasant task, or (especially) over-eating. While people are depleted by too many choices and although people should economize on their decision-making, avoiding choice isn’t always the answer, since unwanted tasks also deplete the energy store devoted to self-control.

Decision fatigue explains some experiences of writers. The writing process is decision laden, which probably explains the paucity of words—estimated as low as 500—a writer can set down in good order on any given day. The replenishment sugar provides explains why writers tend to get fat—if they do—although I only get scrawnier.

These experiences were never terribly hard to explain, but you probably wouldn’t expect the following, which exposes a source of judicial bias. In an Israeli study, researchers found that decisions were favorable to candidates for parole in 70% of cases heard in the early morning, but 10% of cases heard in the late afternoon. Research reports emphasize that the judges react to depletion by opting for the default, but for lawyers’ purposes, the most important finding may be that the court’s default option is to deny a petition.

While the study dealt with only a single venue, it suggests that depleting the judge’s willpower disadvantages the petitioner—a result providing writers of appellants’ briefs with another reason to avoid issue proliferation—but the respondent may benefit from the judge's depletion. The effect is probably not as strong as in the Israeli parole hearings, where the risk of granting parole was much greater than of denying it; whereas in an appellate case, reversal is only moderately more risky than affirmance. The difference is enough to make affirmance the default alternative, experienced as involving less choice, mainly because the reversing court has to state publicly that colleagues erred.

If depleting the judge’s supply of willpower benefits respondents, they may help themselves by using a slightly subversive strategy. The respondent should try to increase the judge’s decisional load yet must also avoid confusing or antagonizing the judge by originating needless complexity. The respondent can sometimes achieve these often-opposed goals jointly by repackaging the issues presented on appeal. Knowing that that decision fatigue benefits respondents should reduce their worry that restating the issues to simplify their briefs complexifies decision-making by the courts, which, depletingly, must now consider competing issue sets.

The work on decision fatigue, undertaken primarily by Roy F. Baumeister and his colleagues, has been criticized by social psychologist Carol Dweck, who found that believing you have an unlimited supply of willpower can enable acting as if you have it abundantly. Although popular coverage of Dweck’s research has submerged the original findings, the Dweck research bears little practical significance. People can eke out painfully higher levels of willpower, but they don’t ordinarily want to.

The writer's ineffable "voice": The immutability of optimal sentence length

2011-11-22T17:49:00.000-08:00

When a friend phones, you know her identity by the sound of her voice. This is the basis for the writer's-voice metaphor, but it’s only a metaphor. The features distinguishing spoken voices refer to the physical dimensions of the sound waves the vocal chords produce, and a pen’s scratch or a keyboard’s click are failed candidates for the voice that’s purported to infuse the scratcher or clicker’s document.

If the spoken voice is the usual metaphor, expression of the writer’s personality is the standard explanation, although it retreats to a murkier metaphor. A real explanation would link the specific characteristics of writing said to constitute voice to specific personality traits. Perhaps someone will someday link writers’ personality traits to expressive style, but before theorists can even speak of a linkage between personality and manner of written expression, they have to know the expressive traits voice comprises. When graphologists, for example, claim styles of handwriting are linked to the writers’ personalities, they have in mind connections like, “If the writer makes her dots above her letter ‘i’ like little circles, she will have histrionic tendencies"; or, “A rising baseline expresses an optimistic outlook.” Writing-voice exponents don’t specify any candidates for the expressive equivalents of circular dots or upward slope, never mind whether they correlate with personality.

Nobody knows how to talk about writers’ voice; yet, some writers manifest a distinct “voice.” Why should being specific about what they manifest be so difficult? My answer is that there’s an obvious solution, but it is, on second thought, obviously wrong—so obviously, that we don’t even consider it; but no other solutions are forthcoming. The obvious solution is that expert writers whose voices are said to differ write sentences distinctive in their length. The rebuttal is that, if voice is worth discussing—if writers can find their authentic voices—then voice can’t be a trait writers adopt as casually as making their sentences longer or shorter. Finally, the mistake the rebuttal commits is ignoring that an expert writer lacks the capacity to change his average sentence length without damaging his expressive capability: optimal average sentence length is immutable.

If you’re like me, when pressed for examples of distinctive voice you think of Hemingway and Faulkner, who are so unlike in the length of their sentences that it overshadows other differences. A second formal difference between them, preference for common versus esoteric words, accommodates different typical sentence lengths: to cohere, long sentences require abstraction. But problematically, average sentence length seems a matter of choice or preference, rather than an inherent personal quality. The idea that finding your voice means achieving stability at your optimal sentence length strikes, at first, as crudely reductionist. Writing teachers often advise students to shorten their sentences, and to the extent this advice helps, it would not seem tantamount to directing students to write in an inauthentic voice. Misleading in this scenario is that we’re talking about students who haven’t "found" their voices—and probably never will. Imagine telling Faulkner to shorten his sentences.

An element of commercial branding probably contributed to polarizing the Hemingway-Faulkner contrast, but I have an example of a professional writer being “told” to shorten his sentences. Science writer Steven Berlin Johnson—on whose casual research the present sentence-length theory of voice is based—found that Malcolm Gladwell’s average sentences were 6.5 words shorter than Johnson’s. His reaction is telling, Johnson declaring, “A 25% drop in sentence length has to alter the reading experience dramatically"; and he joked, “Clearly, the only things separating me from selling ten million copies of my books are those extra 6.5 words per sentence.” While this was overstatement—the writers’ topics no doubt affect their popularity—it probably isn’t entirely false, since a greater number of readers can understand short sentences than can understand long ones. This is why primary-school texts contain very short sentences! Yet, there’s no sign that Johnson—already an accessible writer—tried to make his writing still more accessible by using shorter sentences. Instead, Johnson’s posting focused on each writer's invariant sentence length—evidence that, for the expert writer, optimal sentence length is an immutable trait. For immature writers, the advice to shorten sentences nudges them toward their “authentic voice” or, at least, toward a degree of syntactic complexity they can manage, but it can be taken too far—and often is.

Expert-writers' consistency in their works' syntactic complexity is evidence that mature voice is optimal average sentence length; evidence against this hypothesis is that average sentence length has declined over the years, from 50 words in pre-Elizabethan times, to 29 in Victorian times, to 20 words per sentence, today. (William H. DuBay. (2006) Unlocking Language: The Classic Readability Studies.) If optimal average sentence length is voice, it shouldn't change over generations: if environments change it, then why not training regimens, so that Steven Berlin Johnson could train himself to write shorter sentences—to write more like Malcolm Gladwell?

The objection seems surmountable. In an era when a “good writer” was expected to average more than 30 words per sentence, one who could sustain only 20 would choose a different occupation; today, it can seem the reverse is true. With popular writing style ever increasingly that of marketers, it may seem that those whose genes cause them to write their best using complex syntax will be declared incompetent. But this is unlikely: the unity of language and thought suggests that well-managed syntactic complexity accompanies competent ideational complexity. Before mass advertising arose, the world might have found little use for the master of the simple sentence, but today's complex world still needs complex thinkers.

Misconstruing the compound as elliptical: The fundamental error of comma usage

2011-11-12T22:14:00.000-08:00

I spend an outrageous amount of time cogitating about the comma. Not a specific comma, to which I rarely give a second thought, but about commas in general. These aren’t the most popular blog entries. What drives me is the sense that there’s something wrong, yet widespread, in comma usage and that my alternative isn’t quite right, either.

With the help of one of Mark Nichol’s daily postings, I think I’ve found the central grammatical error underlying problems in comma usage among educated professionals and professional writers. Mark, an editor, has a good eye for detecting writing errors and a remarkable fluency with examples; I’ve learned from his tips. This time, I’ve learned from his mistake; and I figure that if Mark can commit it, the error is common. Let’s start with Mark’s example (which, to be fair, will be put to use outside his posting’s topic, comma splice).

At times, it resembled the pitch of a whirring blender, and at other moments, an angelic choir.

I think the correct punctuation is:

At times, it resembled the pitch of a whirring blender and, at other moments, an angelic choir.

Grammatical analysis is significant here because it can dictate punctuation, since punctuation’s function is to parse text into units we can think of as chunks—to carve text at its joints. Under this view, the most fundamental use of the comma is to separate independent clauses that are combined by means of a coordinating conjunction, such as and, but, or or. This centrality makes it pivotal whether an element is an independent clause. The fundamental error of comma usage is parsing as a compound sentence what only involves a lesser compound (not constituted of independent clauses): a compound subject, compound predicate, compound object, or compound predicate complement. While I knew that before, what I now understand is that writers err in grammar, by reading compound elements as elliptical, when they commit this error in mechanics.

In Mark’s sentence, he takes (as he says in Comments to his posting) the words following and as being elliptical, which means that to understand the sentence’s grammar, you must assume that some words in the fully grammatical version were omitted. (The second sentence of this entry involves genuine ellipsis.) On Mark’s parsing, the fully grammatical version of his sentence would read:

At times, it resembled the pitch of a whirring blender, and at other moments, it resembled an angelic choir.

If this were the correct parsing, at other moments, it resembled an angelic choir could stand alone as a sentence, making it an independent clause. But this parsing is wrong; the sentence isn’t elliptical, as there’s nothing surfacially ungrammatical about it. The sentence with revised punctuation is fully grammatical because angelic choir isn’t the object of a second, elided, predicate, resembled; rather, it is part of a compound direct object of the original resembled. In skeleton, the sentence says:

It resembled the pitch and the choir.

When simplified, it’s obvious that pitch and choir are parts of the compound direct object, pitch and choir.

Tina Blue, an English-department grammarian, gets the principle right and gives examples of how the rule applies to the different kinds of compound element. She hedges on compound predicates: “Occasionally, however, if the parts of a compound predicate are unusually long, [sic] or if the writer feels the need for special emphasis, a comma can be used with a compound predicate. Such commas should be treated as a heavy spice, though, and used sparingly. ... If you use such commas frequently, then you have a stylistic tic that you need to work on.”

But for these special circumstances, the better solution might be rewriting the sentence as a genuine compound sentence. An example of sentence containing a compound predicate that Tina Blue thinks might stand a comma but that doesn’t require one is:

The last candidate spoke for what seemed like hours, and thoroughly bored them.

Compare with:

The last candidate spoke for what seemed like hours and thoroughly bored them.

And with:

The last candidate spoke for what seemed like hours, and he thoroughly bored them.

The first version disorients readers by leading them to expect the elements connected by and to have equal status; dividing a single predicate with a comma, moreover, leads readers to forget the sentence’s subject, when they need it to interpret the predicate’s second major word. The second version—the way I would have written this sentence previously—leads readers to expect a noun following and, instead of a verb. The third—at only slight cost in concision and euphony—is clearest. For legal writing, it’s the best choice.

"Plain-talk" writing: The new literary obfuscation

2011-11-05T22:53:00.000-07:00

“Plain-talk” writing has replaced pretentious writing as the main stylistic mannerism impeding thought. More than a half century ago, George Orwell identified vague abstraction and stale imagery as contributors to political bedevilment: they are the means for making the vile acceptable by concealing its substance. The object of Orwell’s scorn hasn’t disappeared. Politicians and their sycophants still substitute high-flown cliché for penetrating depiction, but that form of literary dishonesty is, today, overshadowed by the abuse of cognitive fluency—by the cult of simplicity. This mode’s mainstay is the non-sequitur; its object of concealment, logical irrelevance; its mechanism, the short, plain sentence. When the new obfuscation becomes pedagogy, writing teachers present its virtue as that of writing as you talk; they call the style “conversational.” It demonstrates that concreteness and vagueness are entirely compatible.

Everyone knows you can’t write efficaciously the same as you talk. So, common sense revises the plain-talk project—using the simple and illogical expressional methods the advocates purvey. A writing blog, CopyBlogger, advises—to the applause of commenters—“Write like you talk, except better. Better words, better arrangement, better flow.” As if this advice were informative.

As a rule, no examples are given, and some of this style’s most ardent practitioners may deny their practice of “writing as you talk.” Writing teacher Wayne Schiess responded to Dr. George D. Gopen’s disparagement of this advice by calling his argument a straw man. Wayne had never heard this advice.

Blogger Luke Muehlhauser provides the rare express example of writing as you talk, and his example ably, if unwittingly, demonstrates how this approach to writing undermines lucid thought: (1), below, is Muehlhauser’s rendition of how a writer would ordinarily state a thought; (2) is Muehlhauser’s recommended rewriting, designed to combine the clarity of writing with the readability of talk:

(1) Perhaps the toughest intellectual work we must do regarding European reconstruction is to realize that it can be achieved through nonpolitical instrumentalities. Reconstruction will not be politics, but engineering.

(2) We have a tough job ahead of us. We need to figure out how to reconstruct Europe. It won’t happen with political forces. The European reconstruction will be a matter of engineering, not politics.

The plain-talk version, (2), is more cognitively fluent than is (1): it deftly hides the contradictions and vagueness baldly evident in (1). First, reference to “instrumentalities” in (1) impels readers to seek to identify them, and calls readers’ attention to the merely negative characterization of the “instrumentalities” as “nonpolitical.” Second, the reader of (1) naturally demands to know how “we” are supposed to act through “nonpolitical instrumentalities,” when “politics,” after all, denotes our means for consciously coordinating the actions of numerous persons. Third, if realizing that Europe can’t be reconstituted through politics requires tough intellectual work (it actually was reconstructed through the very political Marshall Plan) the writer isn’t entitled to announce the conclusion, in advance of the required work.

These objections, occurring naturally to the reader of (1), make that version clear but hard to read. The reader tries to make sense of it, in the face of signals that (1) is false, and readers find known falsehood harder to understand than probable truth.

The “plain-talk” version, (2), expresses the same information contained in (1). The difference is that the clauses in (2) are poorly connected. Although (2) urges readers to figure out how “we” can reconstruct Europe, the inconceivability of collective action being nonpolitical is pushed from the foreground, by replacing nonpolitical instrumentalities, through which we act, with nonpolitical forces, which happen. Furthermore, the unexpressed connection between, on the one hand, the conclusion about Europe’s nonpolitical reconstruction and, on the other, the intellectual work from which the conclusion follows, hides absurdity, that of announcing in advance a conclusion of work undone.

The integration fostered by (1)’s concision fosters skepticism of its flawed reasoning. The disjointed “conversational” style of (2) makes the flawed reasoning easier to overlook. Whether Muehlhauser prefers this outcome is unclear.

How new is cognitive fluency?

2011-10-25T19:06:00.000-07:00

Except for the Baker law-review article discussed in the Disputed Issues entry on cognitive disfluency, and the Disputed Issues entry applying cognitive-fluency principles to citation formats, the legal-writing world has paid scant attention to the spate of cognitive-fluency research, which appraises simplicity’s benefits and drawbacks for document reception. Plain-language blogger Cheryl Stephens captures what may be the chary outlook of many legal writers:

Scientific research has expanded so much in the last 20 years that plain language practitioners could not keep up. Money for research is needed to ensure that plain language procedures take advantage of current scientific discoveries. The most significant of these seem to be in the new area of study: cognitive fluency.

Another likely source of neglect is a prevalent belief that cognitive fluency is but a fashionable name for well-known effects. The cognitive-fluency results are new but not hard to understand, yet embodying the results in crisp recommendations is elusive, requiring an understanding of the tension between the writing Virtues Clarity and Concision, as their reciprocal modulation balances fluency and disfluency.

Cognitive fluency can seem like old hat because writers have long appreciated the value of minimizing mental effort for comprehension. Much of the recent-findings’ novelty lies in in the advantages of disfluency; but even regarding fluency’s advantages, the research differs from traditional understanding, where avoidance of unnecessary complexity is based on the reader’s limited capacity to maintain multiple thoughts in a conscious state simultaneously, a rationale defining simplicity as well as justifying it. At least as long ago as 1852, when philosopher Herbert Spencer wrote The Philosophy of Style, this limited-capacity concept underpinned the rationale that the less capacity readers must allocate to decoding a communication, the more they can allocate to thinking about it. Readers were also expected to be less likely to misunderstand the simple, since it left spare capacity. The Disputed Issues entry “A rare shortcut to better writing” applied the hoary theory of limited-capacity attention to writing’s production, to explain how faster typing improves it. Science had seemingly vindicated the limited-capacity theory when psychologist George Miller published his finding that humans had a limited short-term memory capacity that varied between five and nine bits of information, as when a tester reads a digit series, one number per second, and few subjects will be able to remember more than nine or less than five. Miller’s finding this consistent limitation of conscious apprehension—Miller’s famous “magic number seven plus or minus two”—ensured that the digit-span test would remain part of standard intelligence testing, despite the low correlation with general intellect.

The past-decade’s cognitive psychology retains the concept of working memory, but reconceptualizes it as the person’s skill in directing attention to recently conscious or related thoughts, which, hypothetically, are “activated” but unconscious. The subject’s preconscious thoughts—to use Freud’s term for ideation not conscious but amenable to being made so—are accessed in experiments where the subject is diverted from a memory task by subsequent attention-consuming operations. An easy test of this kind is given during standard psychiatric mental-status examinations, when the tester directs the patient to recall three words, which must be recited at the end of the examination, during which the tester elicits unrelated information. That the important component of working memory isn’t limited by fixed storage implies that we can’t deduce mnemonic efficiency from simplicity (which is to say, from cognitive fluency). Here’s an example—compare (1) and (2):

(1) Sentences can be short. They can also be long. This is a good thing. Lack of variety is wearying. It may drive you to distraction.

(2) It’s a good thing that sentences can be short or long, because lack of variety is wearying and may drive you to distraction. (H/T: Mark Nichol, Daily Writing Tips [for the examples].)

The four-sentence version (1) is simpler, its simple sentences bereft of complicating structural nuance. Speaking theoretically, the complex sentence (2) activates more unconscious ideas, inducing a more powerful working memory, not one limited to the simple-sentences’ smaller ambit.

If the clearest prose isn’t the most fluent, if clarity is an optimum on the fluent-disfluent dimension, then the advantages of clarity aren’t those of simplicity. What, then, is the advantage of clarity? The answer might seem self-evident. Obviously, it might be thought, a writer wants to be clear so that he will be understood to mean what he does mean. Clarity means easily understood, the “obvious” thought continues, and the easier it is to understand, the more likely it will be understood. But this is fallacy. What requires less effort to understand is not, in logic or in fact, necessarily clearer, more likely to be understood—not if greater effort is forthcoming. This is the nontraditional conclusion on which cognitive-fluency and working-memory research converge.

Some writing skills can undermine thought. THE UNITY OF LANGUAGE AND THOUGHT. Part 3.

2011-10-18T10:29:00.000-07:00

Earlier entries in The Unity of Language and Thought series:

Part 1. Can bad writers be good thinkers?

Part 2. Are good writers good thinkers?

The skills improving persuasiveness contribute unequally to thought; some may even detract: while good writing renders ideas more precise and manipulable, that’s not all it does. Distinguishing the thought-promoting aspects of persuasion prevents beguilement by rhetorical flair.

Ornamentation and convention contribute little if any to thoughtful quality. Ornamentation (which will consume most of our attention) increases a document’s emotional appeal. Euphony, dependent on surface qualities of expression—those which rarely survive translation—falls in this category. Alliteration, assonance, and consonance bear little relation to the quality of thought. Also playing on affect are the rhetorical figures (excluding simile and metaphor, because they can make an important contribution to Clarity, a Writing Virtue). Law Professor Ward Farnsworth’s new book Farnsworth’s Classical English Rhetoric abundantly illustrates the rhetorical figures, which invoke three types of pattern: repetition of words and phrases; structure, such as parallelism; and dramatic devices, such as rhetorical questions. Repetition serves adornment most single-mindedly; contrast with parallel structure, obligatory when the elements are logically parallel, as in lists and correlated conjuncts.

The distinction between clarifying and purely rhetorical devices is the difference between a simplicity due to efficient compression of information—as accomplished by any good theory—and simplicity for presentation’s sake. An example of the latter is Republican Presidential–candidate Herman Cain’s 9–9–9 tax plan, a proposal chosen for its sheer simplicity, unbolstered by reasons for taxing the three components identically. The difference is between scientific elegance and marketing catchiness.

This is not to say that the rhetorical figures are unimportant in legal writing. To the contrary, instruction is remiss in its neglect of rhetoric, since legal-brief writing, above all, is persuasive. The point is rather that the rhetorical-figures’ persuasiveness is irrational when it rests on the general qualitative correspondence between writing and thought. But factors besides the quality of thought help persuade judges; and judges, all too human, aren’t entirely rational.

This analysis of rhetoric’s somewhat unreasonable role provides another explanation for legalese, based on its function. Insofar as rhetoric is a means to persuasiveness neither reflecting the writer’s quality of thought nor enhancing the reader’s rationality of judgment, a legal system priding itself on procedural egalitarianism may seek to banish it. While identifying rhetoric by black-letter rule might be impossible, the “system” could approximate its goal by fostering a rhetorically unartful legal-writing style. At the same time, this style incorporates, as “substitute gratification,” formulaic rhetoric, such as trite doublets and triplets. (Notice the analogy between how the law staunches pomposity by supplying pompous forms that don’t make the lawyer look pompous and how it suppresses rhetoric by supplying rhetorical forms with an antirhetorical effect.)

Following arbitrary conventions is another major way (after ornamentation) to improve as writer without necessarily improving as thinker. An excellent speller can be an incompetent thinker. The same goes for other arbitrary conventions, such as capitalization and font choice.

Font choice brings us to the second reason for distinguishing those literary aspects enhancing thought from those favoring persuasiveness by other means. Over-valuing one’s own ideas is a pitfall when seeking objectivity and rationality. We’ve seen how writers—by sheer exposure—fall in love with their own style, but exposure also endears their self-produced content to writers’ hearts. Writers striving to think clearly and deeply can benefit from less persuasiveness in their private writing. This is perhaps part of the benefit of handwritten drafts and other formal variations decreasing the document’s cognitive fluency, thereby increasing the writer’s self-criticalness—improving their logical rigor, representational accuracy, and intellectual honesty. Reviewing one’s writing cast in a more disfluent typography, such as 8-point fonts, produces the same effect. Varying the medium—screen or paper—also can contribute to a more critical attitude toward one’s work. These variations benefit private thought for the same reason they sabotage public persuasion.

Richard Posner versus Bryan Garner on citation formats: The verdict of cognitive-fluency research

2011-10-08T17:13:00.000-07:00

Builds on “Cognitive disfluency: Simpler isn’t always better.”

The 19th edition of The Bluebook contains more than 500 pages, and lawyers and legal-writing authorities both are divided on how religiously legal writers should follow its dictates. The first issue, dividing many trial attorneys from appellate attorneys, pertains to basics of citing cases and statutes: punctuation, sequencing, capitalization, and statutory-compilation abbreviations. Appellate attorneys usually conform strictly to these rules; trial attorneys deviate, believing that format errors don’t matter provided clarity and consistency are preserved. The second issue, dividing appellate attorneys, involves deviations from The Bluebook that the deviationists believe improve on it, the most common improvement being avoidance of most abbreviations in case names. This is to say, many trial attorneys deviate when they believe it doesn’t matter, whereas the dissenting appellate attorneys deviate because they believe their way is better. I conclude that attorneys best serve their clients when they follow most citation formats authoritative in their jurisdiction, since familiarity produces cognitive fluency, but for the same reason, they should curb excessive complexity, such as The Bluebook’s arcane abbreviations. If you’re keeping score, Garner wins the contest over the first issue—fidelity to the basics; Posner, the second issue—dismissal of arcana.

Posner (whom I declare wrong on the first issue) submits that most citation formatting is invisible to judges, hence irrelevant. (Richard A. Posner, The Bluebook Blues (2011) 120 Yale L. Journal 850, 853.) In fairness to Posner, he doesn’t directly address whether attorneys should follow The Bluebook; he advocates replacing it with less complex, less encompassing, more libertarian rules. The citation guide that approaches Posner’s preference is the Maroonbook, which governs the University of Chicago law review. Posner instructs his clerks with a short memorandum on formats and style. (Id., at p. 854.) I agree with Posner on the systemic question, but I take issue with his argument, which would justify the laxness of many trial attorneys. Posner maintains that it only matters that the format serves the two functions of citations: instantly revealing whether an authority is worth examination and clearly depicting its address. (Id., at p. 852.)

When applied to advice to practitioners, who’re stuck with their jurisdictions’ rules, Posner’s argument founders on scientific findings that “cognitive fluency”—ease of understanding—increases the believability of writings. (“Cognitive disfluency” has its place in persuasion, but the writer’s leeway to be disfluent shouldn’t be squandered on citation, rather devoted to concision.) Since familiarity makes for fluency, writers should mostly follow the official citation formats, familiar to judges. The “invisibility" of these formats is of little moment: many cognitive-fluency effects occur outside the reader’s awareness.

Posner’s view better accords with science when he objects to The Bluebook's needless complexity. Its “hypertrophy” (Posner’s word) includes post-adjudicative signals without legal significance, such as certiori denied in an old case. (Posner, supra at p. 851.) It also includes information supplied by context, such as the designation “dissenting opinion” within a discussion focused on the dissent. The greatest hypertrophy, accounting for much of The Bluebook’s expansion, consists of obscure abbreviations The Bluebook insists that legal writers apply to case names. The case name is often without significance, but scanning an unpronounceable letter series is “cognitively disfluent,” which will unconsciously prejudice the judge against the writer’s position.

Legal-writing authority Alan Dworsky, who maintains that correct formats signal competence, makes the argument for slavish submission to The Bluebook, including its case-name abbreviations:

Citation form is a litmus test of your credibility. Judging a writer's credibility is hard. Readers draw large inferences from small clues, and citation form is one place they look. Like spelling, citation form is either right or wrong. Especially in citations to commonly cited sources like cases and statutes, where a reader is likely to recognize an error, your citation form should be perfect. (Alan L. Dworsky (2d ed. 1992) The Little Book on Legal Writing at p. 75.)

Impliedly supporting strict Bluebooking, Bryan Garner, surprisingly, favors The Bluebook over an alternative—the legal-writing teachers’ ALWD Manual—regarding the Bluebook’s insistence on abbreviated case titles. Garner doesn’t explain the plus he awards, but the economic signaling argument is the strongest one I’ve seen for hyper-ardent Bluebooking. Judges are practical people—as long as the writer doesn’t flout a Formality—but conceivably, some law clerks fresh out of law review may accept rigorous Bluebooking as a competence signal. I expect these signals to be weightless when the writer systematically replaces most abbreviations with full names.

So, except when court rules expressly dictate formats—sometimes even then—brief writers shouldn't slavishly follow citation formats. The official formats should be followed presumptively, since they bear the advantages of expectation and familiarity, but not when disfluent, like The Bluebook’s arcane abbreviations.

Pen or Keyboard?

2011-09-24T12:17:00.000-07:00

“Most literary people,” according to legal-writing authority Bryan Garner, have “good hands.” Garner, consequently, advises legal writers to improve their penmanship. You might suspect his advice rests on a cum hoc ergo propter hoc fallacy (mistaking correlation for causation), but a more charitable interpretation is possible: perhaps handwriting is more useful to composition than many suspect, and perhaps practice improves penmanship. This seems the best explanation of the correlation between handwriting quality and literary inclination, leading me to experiment with penning first drafts. (One alternative explanation, that proofreading requires clear penmanship, is less compelling because correction neither compels the efficiency of the cursive form nor affords much practice.) One doubt about this reasoning stems from observing that adult penmanship resists improvement. Physicians, for example, have notoriously poor hands, scribbling almost illegibly, just because they write numerous prescriptions, but that enigma may contain its own answer. To improve a skill, you must strive to do well when practicing it; if you practice an illegible scrawl, you are rewarded by permanently acquiring one.

These speculations motivated me to experiment with handwriting, but before discussing the outcome, some description of procedure. First the pen. Occasional earlier tries at handwriting drafts ended adversely, the big difference, this time, the writing tool. Ballpoints, rollerballs, gel pens, pencils, and steel-nibbed fountain pens had demanded excessive effort. The effect of these inferior alternatives wasn’t small: my first drafts with these instruments were unusable—unrevisable. Fourteen or eighteen karat gold-nibbed pens proved far better. Second, the keyboard; to compare pen and keyboard fairly, the experimenter should choose the best of each. A mechanical-switch keyboard, with its tactile feedback, distracts less than the cheaper membrane variant that usually comes with the computer.

Now the results—or at least, my impressions. Whereas the keyboard is unsurpassed when you know in advance what you shall write, the pen is better for figuring it out, that is, for free writing, a surprising finding, since skilled typing is much faster. What’s desirable in free writing is not only speed, which helps production keep pace with thought, but also unobtrusiveness, to minimize the distraction of physical effort. Cursive writing with a quality pen distracted me less than typing. This is a conclusion from mere personal experiment, but the results do cohere: handwriting improves with practice when the writer strives to draft legibly.

What I don’t know is how widely these results transfer. Greater typing speed might make a difference. I type about 90 words per minute, but I’m aware of much faster typists. (Discovering them on the TypeRacer website was a bit deflating.) If a writer can type fast enough, that may overshadow writing ease. Also, the results might depend on preferences. I find typing less pleasurable than handwriting (but only with a proper pen).

If readers have compared pen and keyboard for early drafting, comments are most welcome.

Cognitive disfluency: Simpler isn't always better

2011-09-07T20:06:00.000-07:00

“Simplicity” is the new mantra in endeavors influenced by psychology’s half-decade-old wave of cognitive-fluency research. Understanding why the mantra is an over-simplification should also help counter some simplistic plain-writing advocates.

Cognitive fluency refers to mental ease, including ease of understanding, and it has been found to have striking benefits for at least some forms of communication, such as marketing, where fluent writing and branding have sometimes more than doubled sales. Experiments manipulate the cognitive fluency of written material by using small words, short sentences, familiar concepts, and clear fonts, among other means. The resulting fluency often dramatically increases the message’s acceptability. Not only is it better understood but is also better liked.

As in Julie A. Baker’s application of fluency research, presented in her article “And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate”—which claims cognitive-fluency research best answers legalese’s proponents—appliers of these scientific results have largely overlooked the recent research focus on cognitive disfluency, which also carries striking benefits,. (HT: Lawrence B. Solum, The Legal Theory Blog [Baker essay].) While Baker nods to research favoring disfluency, her argument that cognitive-fluency research argues for plain writing discounts it. The pro-fluency research surprises by the strength of fluency’s effects, including the positive effect of a corporation’s simple name on its stock prices. But the disfluency research has its share of startling results, such as the recommendation—flying in the face of plain-writing dogma—that school texts should be harder to read. Disfluent writing, experimenters report, is read with greater retention. Similarly, cognitive psychologists point out that disfluent company names build greater customer loyalty, despite or because of the customers’ initially reluctant embrace. Disfluent writing engenders reasoning deeper and more abstract and thinking less stereotypical (an explanation for asiatic style’s effectiveness with an unfriendly court).

Fluency’s bipolarity is important for legal writing because it shows that cognitive fluency isn’t identical to or even correlated with the writing Virtue Clarity: fluency isn’t necessarily Virtuous. This interpretation differs from most marketers adopting fluency as their mantra and from Baker, according to whom fluency is virtuous except in narrow circumstances—most notably, summarizing opponent theories. The research favoring some disfluency demonstrates how fluency diverges from Clarity: often, somewhat disfluent writing is clearer than the most fluent—when, for example, Clarity benefits from reader’s construing the topic abstractly. (Construal theory is another topic of considerable research in cognitive psychology.) Fluency theory offers to integrate the accounts of truth and beauty, and the analogy between the two implies that, as with beauty, the optimal fluency is a compromise between fluency and disfluency, although where that compromise is found may depend on the subject, such as whether it is best understood when construed abstractly or concretely. A recent explanation of fluency effects maintains that absolute fluency isn’t the relevant factor when fluency enhances understanding or persuasiveness; but rather the relevant factor is fluency relative to readers’ automatic expectations.

The desirability of fluency in that pure form advocated by the marketers and some plain-writing proponents—those who would be flummoxed to discover that students might learn more from harder-to-read textbooks—is rebutted by counter-examples, such as these: If sheer fluency is desirable, why do legal writers struggle to avoid brute repetition? If we are attracted to the fluent, how is it an author like William Faulkner—with his complex, lengthy sentences—is the most effective American fiction writer? The automatic expectations of fluency and disfluency are yet uninventoried, but I conclude long sentences and other complexities create an expectation of disfluency, contrasting with the relative fluency of a well-constructed long sentence, whereas blatant repetition creates an expectation of fluency, offsetting fluency's perception.

When to modulate fluency versus disfluency remains subject to the writer’s intuition, although the psychological research can help refine a writer’s choices. But direct advice on how to modulate fluency versus disfluency follows from the Disputed Issues writing-Virtues framework. To write disfluently for Clarity’s sake, tilt the language toward greater Concision, rather than decrease fluency by arbitrary means, such as unclear typography or convoluted sentences. The advantages of selective disfluency don’t justify legalese, which not only is overly disfluent but also verbose.

See also: Richard Posner versus Bryan Garner on citation formats: The verdict of cognitive-fluency research and How new is cognitive fluency?

Dash or colon: Does the tail wag the dog?

2011-08-22T08:25:00.000-07:00

The preceding entry concerned paired em-dashes setting off digressions. A single dash may set off a sentence-terminating digression, but in another usage, the single dash replaces a colon to introduce explanation rather than digression. Which—colon or dash—should writers favor?

Among writing academics are partisans of the colon and those of the dash, as well as neutrals. Often the criterion is register—the colon designated formal, the single dash informal—but formality doesn’t necessarily recommend usage. Legal-writing authority Professor John R. Trimble takes a distinctive position, favoring the dash over conjunctive colons because colons look overly formal (“studied”). Trimble may have over-generalized from the correct observation that the colon is overkill when the matter’s explanatory character is obvious without it, as in this sentence:

There are two parties to a sales contract—buyer and seller.

A colon would induce excessive expectations.

Another warrant for the dash in the last (italicized) example sentence is that emphasis doesn’t fall on the explanatory matter following. The colon emphasizes what follows, a pair of dashes what they enclose, but the single dash emphasizes what precedes, an emphasis writers can exploit to offset the dramatic character of what follows. This effect can trick an observer into concluding that the dash, not the meaning of what follows it, provides terminal emphasis, as here:

Employing a single em dash in a sentence commands your readers' attention, enticing them forward—c'mon, reader, let's go see what'z over here! It can also lend particular force to a terminal phrase—really it will!

Using a non-dramatic termination as paradigm, another authority correctly concluded that the single dash is backward looking, the colon forward looking: “The effect of a colon is to lead the reader forward into the following section. A dash is more like a bucket of cold water flung in the reader's face, jolting them back to the starting point of the sentence.” The perspicuous sample sentence was:

Hamlet's indecisiveness, his arrogance, his suspicion of others, his passionate, brooding, introspective nature—these all contribute to his downfall.

The misperception that the single dash emphasizes the following digression also overgeneralizes from paired dashes’ digressive emphasis. The distinction lies deep in the shape of the punctuation marks, rather than only in convention. Symmetric dashes make the enclosed matter salient, whereas a single dash makes what follows an afterthought: it looks like a tail, and everyone knows the tail doesn’t wag the dog.

A crusade against the dash?

2011-08-04T14:17:00.000-07:00

Em-dashes, which emphasize digressive matter, enclose the words constituting the digression. The enclosed matter is syntactically heterogeneous, the dash being an almost unique punctuation mark, similar only to the parenthesis in its indifference to whether it ranges over descriptive modifiers, restrictive modifiers, appositives, compound predicates, propositions lacking syntactic relation to the rest of the sentence, or others. This indifference extends to the punctuation, if any, these sentence components would otherwise take.

Its syntactic indifference is probably why some writers, insecure in their knowledge of grammar, overuse the dash, and anxiety about overuse may be why some other writers are oddly averse to the dash—which, when used without restraint, can’t serve its emphasizing function. Like other vehicles of emphasis, such as bolding and italics, the dash in excess loses meaning and becomes annoyance.

The emphasis the dash imparts isn't so heavy to compel limiting its use to rare occasions, as Noreen Malone advocates in her May 24, 2011 piece in Slate’s column “The Good Word 2011: Language and how we use it.” Malone criticizes writers for substituting the dash for other punctuation marks, but in noting substitution’s prevalence, Malone unwittingly rebuts her own contention, that the dash disrupts sentence flow when interrupting it. If a sentence is unobjectionable using alternate punctuation, then the dash is innocent of fostering disruptive verbiage.

Malone observes that the dash is often used where another punctuation mark wouldn’t offend syntax. In legal writing, these alternatives are usually commas, the dash best serving legal brief writers to avoid the confusion of comma excess. (See Garner, infra.) When dashes replace commas, the matter enclosed is often a descriptive modifier, as are the five example Bryan Garner approves in The Winning Brief. (57: 231 - 233.) Writers constantly interrupt sentence flow by using descriptive modifiers, otherwise set off by commas. Without forgoing descriptive modifiers—distinguished from restrictive modifiers by interrupting sentences—the writer can’t avoid interruptions to sentence flow. Since in the sentences below flow isn't disrupted in a version using commas, the words within the dashes don’t intolerably interrupt sentence flow.

Interruption of sentence flow distinguishes descriptive modifiers—otherwise set off by commas—from restrictive modifiers.

Interruption of sentence flow distinguishes descriptive modifiers, otherwise set off by commas, from restrictive modifiers.

Less often, legal writers use dashes to set off restrictive modifiers, otherwise unpunctuated, or (below) other unpunctuated language

Unlike bans on obscenity—but like bans on speech presenting a clear and present danger of violence (Schenck v. United States (1919) 249 U.S. 47 [affirming criminal penalties for wartime military-draft-repeal agitation intended to encourage obstruction])—bans on frivolous filings are inherently viewpoint discriminatory.

Ordinarily, the conjunction of two introductory phrases need not take punctuation between the conjuncts, but here the length of the second introductory phrase and its parenthetical character recommends the dash, which also—by allowing the citation's placement beside the cited matter—avoids confusion.

Only rarely do legal brief writers use dashes to insert words—whole propositions—that they could not have added without the dash’s aid. The sole concern relevant to sentence flow is using the dash to enclose a whole proposition, with no ordinary syntactic standing within the sentence—a function of the dash that permits grammatically proper run-on sentences.

Judge Richard A. Posner provides an effective example of this usage, where a whole proposition is embedded in a sentence:

The second method, which is the pragmatic, is to determine the purpose of the rule—almost always there is a discernible purpose—and then pick the outcome that will accomplish that purpose. (How Judges Think.)

The potential harm of this form of digression is verbosity. Malone’s examples show that setting off with dashes a proposition that isn't syntactically elemental promotes inserting redundant metadiscourse. You needn’t look beyond the parody in her piece’s title: “The Case—Please Hear Me Out—Against the Em Dash: Modern prose doesn't need any more interruptions—seriously.”

Malone joins Strunk and White in her worries about replacing other punctuation with the dash. Strunk and White advise, “Use a dash only when a more common mark of punctuation seems inadequate.” The advice is off target, as the most serious potential problem of dash usage—other than overuse—occurs when the dash plays accomplice in inserting language that with other punctuation would be ungrammatical.

Are good thinkers good writers? Part 2 of THE UNITY OF LANGUAGE AND THOUGHT

2011-03-29T00:07:00.000-07:00

The Unity of Language and Thought Series. Part 2

The last entry upheld the indispensability of writing for thought. We now turn now to the indispensability of high-quality writing for deep thought.

Taking stock empirically is the most direct approach, but perhaps recognized deep thinkers are good writers because writing promotes their recognition, instead of enhancing their cognition. My strategy is to focus on pairs of deep thinkers whose discoveries or inventions were simultaneous, briefly reviewing some relevant commentary and providing short samples of their styles. Promotional considerations are weaker on knowledge's cusp, this particularly true for the less credited thinker, who, after all, failed in his promotional endeavors. Selection by a predetermined criterion also prevents cherry picking samples.

We’ll look at the scientists responsible for two simultaneous discoveries or inventions: Charles Darwin and Alfred Russel Wallace (theory of organic evolution) and Sir Isaac Newton and Gottfried Leibnitz (the calculus).

Darwin is regarded by scholars as a literary as well as scientific genius.

Darwin really was one of the great natural English prose stylists… This is Darwin's method: an apparently modest allegiance to mere fact gathering abruptly crystallizes into a whole world view. Compares his methods to those of Trollope and George Eliot… (http://tinyurl.com/4s8h2yw.)

Here’s a sample:

It may metaphorically be said that natural selection is daily and hourly scrutinizing, throughout the world, the slightest variations; rejecting those that are bad, preserving and adding up all that are good; silently and insensibly working, whenever and wherever opportunity offers, at the improvement of each organic being in relation to its organic and inorganic conditions of life. We see nothing of these slow changes in progress, until the hand of time has marked the lapse of ages, and then so imperfect is our view into long-past geological ages, that we see only that the forms of life are now different from what they formerly were. (Darwin (1872) The Origin of Species.)

Note, for now, one remarkable feature: the 53-word average sentence length.

The co-discoverer of organic evolution, Alfred Russel Wallace, unlike Charles Darwin, isn’t a household name. Scholars regard Wallace as an extraordinary writer; what he lacked was Darwin’s intellectual courage.

… [Wallace’s] consummate writing style. Joseph Conrad kept Wallace’s classic "The Malay Archipelago" on his night table, drawing on it in several of his own books, most notably "Lord Jim." (http://tinyurl.com/5rwnm5a)

Yet you wonder whether Wallace’s intellectual timidity affected his writing style. A sample:

A belief so general, one would think, must rest on indisputable facts, and be a logical deduction from them. Yet I have come to the conclusion that not only is it very doubtful, but absolutely erroneous; that it not only deviates widely from the truth, but is in almost every particular exactly opposed to it. I believe, in short, that birds do not build their nests by instinct; that man does not construct his dwelling by reason; that birds do change and improve when affected by the same causes that make men do so; and that mankind neither alter nor improve when they exist under conditions similar to those which are almost universal among birds. (Alfred Russel Wallace (1870) Contributions to the Theory of Natural Selection.)

Wallace sounds bolder than Darwin, but his writing isn’t quite as good because he uses writing flaws—excessive use of intensifiers, such as “very doubtful,” “absolutely erroneous,” and “exactly opposed"—to amplify the projected impression of boldness, a boldness that protests too much. For our purpose, the relevant observations are that Wallace is more than a competent writer, but his intellectual shortcomings produce writing flaws.

Newton’s writing isn’t celebrated, but his frequently quoted bon mots prove his literary capacity, as below:

I have not as yet been able to discover the reason for these properties of gravity from phenomena, and I do not feign hypotheses. For whatever is not deduced from the phenomena must be called a hypothesis; and hypotheses, whether metaphysical or physical, or based on occult qualities, or mechanical, have no place in experimental philosophy. In this philosophy particular propositions are inferred from the phenomena, and afterwards rendered general by induction. (Isaac Newton (1726). Philosophiae Naturalis Principia Mathematica.)

"I do not feign hypotheses” lives on.

Leibnitz was an accomplished writer, whose concision is particularly remarkable—he wrote philosophy treatises in the space of pamphlets. Leibnitz’s work methods demonstrate the attention he paid to perfecting the written expression of his ideas, as an integral part of their formation.

Leibniz thought on paper, and he even designed a special carriage which rode more smoothly over ruts and bumps, so that he could write while traveling… The way he wrote was as follows: He used folio paper, which was a little shorter and wider than the modern A3, folded in two to make four sides of foolscap, which is a bit narrower and longer than the modern A4. He wrote in the left-hand half of each side, leaving the right-hand half for corrections and additions, of which there were many. He then gave his almost illegible draft to his copyist, to write out a fair copy - usually beautifully written, with plenty of space between the lines. Leibniz would then correct the copy, and either have it sent off; or, if there were too many corrections, get the copyist to write it out again. (http://tinyurl.com/5rwnm5a.)

Leibnitz and Newton fought over priority for the calculus, but that wasn’t their only disagreement: Leibnitz took a different view of Newton's “feigning hypotheses.”

…we find some quality in a subject, we ought to believe that if we understood the nature of both the subject and the quality we would conceive how the quality could arise from it. So within the order of nature (miracles apart) it is not at God's arbitrary discretion to attach this or that quality haphazardly to substances. He will never give them any which are not natural to them, that is, which cannot arise from their nature as explicable modifications. So we may take it that matter will not naturally possess the attractive power referred to above, and that it will not of itself move in a curved path, because it is impossible to conceive how this could happen—that is, to explain it mechanically—whereas what is natural must be such as could become distinctly conceivable by anyone admitted into the secrets of things. (Gottfried Leibnitz (1996) New Essays on Human Understanding, Cambridge University Press.)

In modern terms, Newton and Leibnitz were debating physical action at a distance, posited by Newton’s theory of gravity. History’s verdict regarding this dispute—expressed in Einstein’s general relativity— is that Leibnitz’s positions were true, but Newton’s genius consisted in apprehending the most scientifically useful framework, ignoring even its logical incoherence. Perhaps these tendencies are evident in their writing styles: Newton’s attic and direct. Leibnitz’s writing does an excellent job expressing a dry philosophical question compellingly, bearing in mind he was espousing principles that were only vaguely understood at the time.

Objectivity demands attention to adverse evidence, and Socrates, who left no written works, stands out. Whether some sophisticated oral methods can play writing’s role in thought deserves exploration, but the reason for Socrates’s barrenness ambiguates its significance. As a matter of principle, Socrates opposed permanent records of ideas, denouncing them as vehicles for dogmatism. Consequently, we don’t know he was a bad writer: he eschewed writing as a means of communication, rather than of thought.

Next entry will analyze the writing processes important for thought.

Can bad writers be good thinkers? Part 1 of THE UNITY OF LANGUAGE AND THOUGHT

2011-03-18T00:57:00.000-07:00

The Unity of Language and Thought Series. Part 1.

According to a common view, “good enough” writing—a modicum of quality—suffices. If persuasiveness of argument and lucidity of expression are independent factors, a superior product is resource-wasting overkill. Contesting the common view is the doctrine asserting language and thought’s unity. I owe Bryan Garner the idea of applying the doctrine to legal writing:

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 understands that language molds every human thought. Language is embedded in the very way in which you perceive the world. Thus, it's impossible for a judge to focus exclusively on the merits of a case without being affected by the language used to express those merits. (B. Garner, The Winning Brief.)

The concept of the unity of language and thought itself I owe to the great Russian psychologist Lev Vygotsky:

Speech [read writing] does not merely serve as the expression of developed thought. Thought is restructured as it is transformed into speech. It is not expressed but completed in the word. (L. Vygotsky (1986) Thought and Language.)

Succinctly, “Thought is not expressed by language but takes place in it.” (Ibid.)

Vygotsky’s psychology emphasizes that we think by means of “inner speech”; hence, the terms conveying an argument co-determine its construal and effectiveness. The linguistic character of thought is the essential reason the quality of expression matters.

Anyone who denies that thought and language co-determine a brief’s persuasiveness should find an occupation not involving writing briefs, but the implications of the unity of thought and language go further than this truism about persuasiveness. The unity applies, I claim, not only to writing’s reception but also to its production. The unity of language and thought implies:

1) Good writing requires deep thought;
2) Deep thought requires good writing.

To personalize, good writers are good thinkers and good thinkers are good writers.

Point 1 is less contentious than point 2: vacuous thoughts don’t challenge a writer’s skill; Point 1 is also less interesting: a low order of intellectual depth provides ample space to demonstrate incompetence (hence, competence by comparison). In principle, intellectual shallowness limits expressive power, but in practice it does so weakly.

Point 2, on the other hand, makes a strong, contentious claim. It precludes that popular construct the "homespun philosopher" and rejects the “democratic” tenet that many great thinkers go unrecognized because they're inarticulate.But to avoid unwarranted contention, we must be precise about the meanings of both "thought" and "good": Point 2 doesn't claim that the human intellect rests entirely on literary skill. Only deep thought—coherent multistep reasoning with abstract concepts—requires written expression to flourish. To take a familiar example, a trial attorney who is an incompetent writer but is quick on his feet, alert to testimonial incongruities, and shrewd in negotiation need function only in oral mode. To claim the attorney is a poor thinker is at best ambiguous: such attorneys are, in any event, reasonably intelligent. The claim isn’t that bad writers are stupid.

Nor is "good thinking" good in the sense of being correct. Deep thinking constructs theories that are capable of being true about complex matters involving abstractions. A usage point helps clarify. When shallow thinking is applied to complex abstract matters, we call the result stupid. When deep thinking about the same matters goes very wrong, we instead call it crazy, and crazy thought retains at least the possibility of accuracy: you can’t reasonably reject it without comprehension, whereas shallowness disqualifies thought concerning abstract topics. Good writing doesn’t necessarily deserve consideration, but on such topics, bad writing deserves disregard. Properly understood, the claim—contentious enough as it is—asserts that deep thinkers must be capable writers because writing is part of the thinking process.

With this clarification, the claim still conflicts with the received view, but a certain universal writing experience refutes the received view by demonstrating that writing quality sets a limit on thought quality. The experience is that of arriving at profound insights during writing’s course. We can’t devise a complete plan predicting our conclusions; writing lives its own life and decides its own destiny. Unforeseeable insight proves that thought without written expression would be impoverished.

Intellectual discovery continues to surprise experienced writers —revealing how counter-intuitive is the dependence of thought on writing—despite their coming to accept its occurrence intellectually. But though suggestive, unforeseen discovery doesn’t quite prove the relationship between the quality of writing and the quality of thought. A gap remains between the proof that deep thought requires writing and the conclusion that it requires high-quality writing. In the next entry, I intend to close the gap.

Next entry: Good thinkers are good writers.

Why teachers write badly

2011-03-02T12:40:00.000-08:00

Why do we demand excellent writing from practicing lawyers, while we’re satisfied with writing teachers’ mediocre writing? The anomaly raises additional questions. Does it matter if teachers can’t write? If it does, why does no one care? My answers are that it matters, and law schools and their students don’t care because they’re confused about how teaching relates to doing. The conventional wisdom is that teachers needn’t write particularly well to teach fundamentals, but skilled writers obtain better pedagogical results by motivating student improvement.

Legal-writing education needs good writers, who can show rather than tell their students that writing makes a difference, a conclusion few students reach because teachers unable to demonstrate that writing matters limit their horizons. Only large advantages in skill produce noticeably better courtroom results; cosmetic changes, such as eliminating legalese’s remnants, don’t differentiate winning from losing briefs: judges report they receive no assistance from the great majority of briefs. Writing teachers are modest in their claims, but modest writing improvements aren’t outcome determining, as teachers admit when they excuse compromises on quality to satisfy bosses’ demands. Regardless of whether improvements achieved in law school cross the threshold for real-world effectiveness, it’s more important that students, afterward, continue to strive for improvement. Writing teachers, themselves, must cross the effectiveness threshold to convey the significance of writing quality.

Another aspect of writing pedagogy is that students must not only grasp that writing matters but also believe that following the teacher’s suggestions helps. A student has few grounds to think a teacher who doesn’t write particularly well can provide useful advice: if teachers knew how to do it, wouldn’t they? The students, moreover, have a point.

So, what must law schools be thinking? By analogy to the qualifications of professors—not necessarily gifted in applying doctrine—schools justify hiring writing teachers who aren’t writers. Superficially, hiring writing teachers who can’t write seems analogous to hiring doctrinal professors who can’t litigate, but the analogy fails because the circumstances differ. The professors don’t teach litigation, and they are experts at what they do teach, legal analysis. Clinical courses, not doctrinal courses, concern applying doctrinal analysis to litigation, and those courses’ teachers are excellent litigators.

You wouldn’t want a professor shaky on legal analysis for a doctrinal class; you wouldn’t want a teacher lacking trial skills for a clinical class; and you shouldn’t settle for teacher who isn’t an excellent writer for a writing class.

Issue statements: Whether to use "whether"

2011-02-21T16:57:00.000-08:00

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

2011-02-12T22:47:00.000-08:00

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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

2011-02-03T19:53:00.000-08:00

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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

2011-01-25T01:44:00.000-08:00

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

2011-01-21T21:04:00.000-08:00

To write informally, imitate conversation. The chart, below, 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

2011-01-15T17:07:00.000-08:00

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 but 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 both breaches, 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

2011-01-05T20:45:00.000-08:00

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. Mike 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 Mike'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

2010-12-27T22:30:00.000-08:00

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

2010-12-19T21:17:00.000-08:00

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